Development Aid: Pakistan
 - Question

Lord Harries of Pentregarth: To ask Her Majesty’s Government whether they will take steps to ensure that the United Kingdom’s development aid supports the most vulnerable minorities, particularly in Pakistan.

Earl of Courtown: My Lords, UK aid prioritises the most vulnerable, excluded and disadvantaged, including those caught in crises and those most at risk of violence and discrimination. Promoting tolerance and inclusion is a core principle across our Pakistan programme and we also have programmes specifically supporting minorities. We regularly raise the needs of minority communities with the Government of Pakistan.

Lord Harries of Pentregarth: I thank the Minister for his reply, particularly for saying that DfID focuses on the most vulnerable, but in Pakistan this is simply not happening. There are communities there which are twice distinguished by their poverty; first, on religious grounds, as either Hindus or Christians; secondly, because they are Dalits. Of course, if they are women, they are discriminated against on a third ground. Is it not possible for DfID to disaggregate its aid in order to identify, focus on and target such minorities?

Earl of Courtown: My Lords, the noble and right reverend Lord makes a very good point about ensuring that we target aid to the people who need it. DfID Pakistan continues to review its support to poor and marginalised people in Pakistan and we aim to better disaggregate our results data in future. We recently had some success in collecting more and better-quality data on people with disabilities in Pakistan, and this also picked up other minorities. We have learned from that and will build on it to focus our energy on collecting data from these other groups.

Baroness Smith of Basildon: My Lords, the Minister will be aware that a key part of our support for Pakistan is the CSSF’s rule of law programme, which aims to increase Pakistan’s civilian capacity to investigate, detain, prosecute and try terrorists. He will also be aware that Pakistan routinely uses the death penalty, including against those who are alleged to have committed terrorism offences as juveniles. He talks about targeting how aid is used, so can he   guarantee to this House today that not a single penny of the CSSF has been used to indirectly support the death penalty in Pakistan in any way?

Earl of Courtown: My Lords, as the noble Baroness is perfectly aware, we condemn the death penalty wherever and by whoever it is used anywhere in the world. We cannot support this barbaric penalty. I cannot give individual details on that programme, but I will ensure that that information gets to the noble Baroness. I should also point out that the rule of law is paramount. For example, in the Asia Bibi case we are very pleased to see Pakistan’s commitment to the rule of law following the Supreme Court of Pakistan’s decision in January this year to uphold Asia Bibi’s acquittal on blasphemy charges.

Baroness Sheehan: My Lords, the Coalition for Religious Equality and Inclusive Development—CREID—was recently set up, tasked with looking at how poverty reduction efforts can actively support inclusive and religiously diverse communities, which I am sure we all welcome. I understand that CREID is funded by UK aid. Can the Minister say where oversight of it lies within government and how its effectiveness is being monitored? I am happy to receive a response in writing.

Earl of Courtown: I thank the noble Baroness for that question and will confirm in writing the exact details she asks for. I should add that DfID’s Pakistan education programme is our largest bilateral education programme, having supported nearly 10 million children in primary education and 5.8 million in secondary education since 2011. It is also important to note that other practical support for education includes improving the teacher training curriculum, including modules on equity and inclusion.

Lord Elton: My Lords, if the answer to my question is not in his answer to the previous questioner, will my noble friend undertake to let us know through the Library or whatever other means what proportion of the money that this country gives to Pakistan every year is devoted to focused targets on the most needy, and what proportion of it is not predicated on any requirement for any standard treatment of justice and the rule of law?

Earl of Courtown: My Lords, our DfID programme this year has amounted to £300 million. The important point to remember on this is that DfID is active in making the case that the most stable societies are those which uphold the right to freedom of religion and belief. The stability of the whole country is reflected in that. We also regularly challenge our partners to demonstrate that they are doing all they can to meet the needs of the most vulnerable people, including religious minorities. The point of this aid is to target those minority groups, and that is what we are doing.

Lord West of Spithead: My Lords, does the Minister not agree that part of the problem—I came across this with two big schemes I was involved with in   Pakistan—is corruption? The amount of money that trickles down to where you want it to have effect has by then gone through layer after layer of provincial governors and others who, I fear, have sticky fingers, and is very small. How can we ensure that DfID money actually hits the people who really need it, rather than feeding corruption?

Earl of Courtown: The noble Lord makes a very good point: targeting aid to those minority groups is useless if it will not reach them in the first place. One of the primary aims of the department is to ensure that the aid targeted at those minority groups actually reaches them. That is kept continually under review.

Lord Lexden: My Lords—

Noble Lords: Time!

Special Adviser Appointments
 - Question

Lord Young of Cookham: To ask Her Majesty’s Government whether the correct procedures were followed in the dismissal of Sonia Khan as a special adviser.

Earl Howe: My Lords, the Government do not comment on personnel matters regarding individuals. Special advisers are temporary civil servants appointed in accordance with Part 1 of the Constitutional Reform and Governance Act 2010. They are bound by the Code of Conduct for Special Advisers and the terms of the Model Contract for Special Advisers, which sets out how special advisers are appointed and leave their role.

Lord Young of Cookham: Noble Lords will recall that on 29 August Sonia Khan was summarily dismissed by Mr Cummings and shown to the front door of No. 10 by an armed officer. Paragraph 3.3 of the Ministerial Code, which was updated on 23 August this year, says:
“The responsibility for the management and conduct of special advisers, including discipline, rests with the Minister who made the appointment”.
The Chancellor knew nothing of this, so under what authority did Mr Cummings—a man who was summoned to give evidence to a Select Committee in another place, told the chairman to “get lost” and was then found to be in contempt of Parliament—dismiss Sonia Khan? Finally, on treatment of special advisers, was it appropriate for Mr Cummings to say to his fellow special advisers:
“If you don’t like how I run things, there’s the door”?
If he continues to act in this arrogant manner, should that invitation not be extended to Mr Cummings?

Earl Howe: My Lords, as I just said, my noble friend will understand that I cannot comment on personnel matters relating to individuals. I can say in general terms that, in line with the Constitutional Reform and Governance Act 2010, special advisers operate under the authority of their appointing Minister. Therefore, special advisers in No. 10 act under the authority of the Prime Minister. Section 8 of the 2010 Act also allows special advisers to exercise any power in relation to the management of another special adviser if permitted by the Code of Conduct for Special Advisers. The code of conduct does so permit.

Lord Butler of Brockwell: My Lords, it is the right of civil servants, if dismissal is contemplated, to have access to a disciplinary board before a conclusion is reached. Is that available to special advisers, and was it available in this case?

Earl Howe: I cannot comment on this case, but the status of special advisers is set out in legislation in the 2010 Act to which I referred. Because of the Crown’s power to dismiss at will, special advisers are not entitled to a period of statutory notice when their appointment is terminated. However, the terms of their employment are set out in their model contract.

Baroness Smith of Basildon: My Lords, I will ask the Minister two questions. Given the report in the Daily Telegraph that Sonia Khan was later offered a pay-off of around £40,000 following her treatment, does he consider that an appropriate use of public money? I also refer him to the Code of Conduct for Special Advisers, this time paragraph 14, which says:
“Special advisers must not take public part in political controversy… They must observe discretion and express comment with moderation”.
Does he consider that the Prime Minister’s special adviser is abiding by that or, as journalists have been told, is this just “classic Dom” and supposed to be tolerated?

Earl Howe: My Lords, I cannot comment on the reported offer of a payout, as I hope the noble Baroness will understand. Having said that, the model special adviser contract sets out severance arrangements for when special advisers’ contracts end, as I intimated to the noble Lord, Lord Butler. As I mentioned, all special advisers must adhere to the Code of Conduct for Special Advisers, which applies across the board to every special adviser in government. They are also bound by the standards of integrity and honesty required of all civil servants, as set out in the Civil Service Code.

Lord Addington: My Lords, I will keep this simple. Does the Minister accept that the behaviour in the Sonia Khan case must never be seen as some form of precedent for the way these people are treated? It must never happen again.

Earl Howe: My Lords, No. 10 has always been involved in the performance management and appraisal of special advisers and other personnel management  issues. Disciplinary matters fall under the heading of performance management. That reflects long-standing practice. It is also set out in successive versions of the Ministerial Code.

Lord Forsyth of Drumlean: My Lords, are not special advisers appointed to assist their Secretaries of State and Ministers in the performance of their duties? What on earth is the purpose of Dominic Cummings holding meetings with all the special advisers, who should be responsible to their Secretaries of State and not to him?

Earl Howe: My Lords, the 2010 Act, to which I referred, says that all appointments of special advisers must be approved by the Prime Minister and that the Prime Minister may terminate the contract by withdrawing his consent at any time. That is also made clear in the Ministerial Code.

Lord Campbell-Savours: My Lords, paragraph 11 of the Code of Conduct for Special Advisers states:
“Any special adviser found to be disseminating inappropriate material will be subject to a disciplinary process”.
Can I ask the Minister about the process? What is the process that should have been applied, or that should be applied in these cases more generally?

Earl Howe: My Lords, the terms of employment for any special adviser, as I have said, are set in their model contract. They are bound by the Code of Conduct. The process will depend on the terms of that contract. Dominic Cummings is ultimately accountable to the Prime Minister for his conduct, as is the case for all special advisers.

Lord Hayward: My Lords, is it not acutely embarrassing to this Government that they have put Parliament in a position whereby it is granting a pass to somebody who is deemed to be in contempt of it? I hope that any compensation to Sonia Khan comes not from the pocket of the taxpayer, but from Dominic Cummings.

Earl Howe: My Lords, that is clearly not a matter for me.

Facial Recognition Technology
 - Question

Lord Clement-Jones: To ask Her Majesty’s Government what plans they have to regulate the use of facial recognition technology.

Lord Strasburger: My Lords, on behalf of my noble friend Lord Clement-Jones, and with his permission, I beg leave to ask the Question standing in his name on the Order Paper. I remind the House of my interest as chair of Big Brother Watch.

Baroness Williams of Trafford: My Lords, the judgment in the South Wales Police case confirms that there is a clear and sufficient legal framework for the police to use live facial recognition. We will keep governance under review and work with the police and others to ensure that public trust and confidence in the police’s use of new technology are maintained.

Lord Strasburger: I thank the Minister for that reply. The Government have previously confirmed that this highly intrusive technology is being deployed in a legal vacuum. Alarmingly, we have recently discovered that private companies have for years been secretly using automated facial recognition in public spaces, and the Commissioner of the Metropolitan Police has warned that we are sleepwalking into an “Orwellian … police state” and called for a code of ethics and a strict legal framework. Parliament must provide these. In the meantime, will the Government impose a moratorium on the use of this intrusive technology?

Baroness Williams of Trafford: The Government do not intend to place a moratorium on the technology’s use, but the noble Lord is right that such use needs to be carefully governed and be in line with the law and human rights, and with a clear oversight framework. Use of the technology in the private sector—the noble Lord might have alluded to this—is currently being looked at by the ICO.

Baroness Nicholson of Winterbourne: Will the Minister consider the utter incompetence of the private and public companies which create facial recognition technology? You have these machines and you pay a vast sum of money for them, but when you put your face on them, they cannot recognise you for anything. Is it not better to press for the improvement of the system rather than trying to clamp down on something that is in no way ready to be used properly yet?

Baroness Williams of Trafford: I hate to differ on this with my noble friend, but e-gate technology is in fact superb at matching facial recognition to passports—in some cases, better than humans. However, the human eye in these things is of course not to be dismissed and it can detect all sorts of other things in terms of e-gates.

Lord Anderson of Ipswich: My Lords, the Surveillance Camera Commissioner reported in July that not only facial recognition but gait analysis, lip-reading technology, algorithms that can predict fights and sensors that can detect explosives and radiation are all in development and all linked to surveillance cameras. Given the enormous potential of those developments, both positive and negative, and the need for trust on the part of the public, will the Government commission an independent review, with clear parameters, into how, if at all, such investigatory powers should be used and how that use should be supervised in the public interest? Does she agree with   the commissioner that there is a case for placing the oversight of all these powers with the existing Investigatory Powers Commissioner’s Office?

Baroness Williams of Trafford: I agree with the noble Lord that the emergence of these new technologies necessitates a very careful approach. The live facial recognition technology is currently being trialled rather than fully rolled out, so we need to be very careful about it. In terms of oversight, the Surveillance Camera Commissioner has provided guidance for the police. We have established an oversight board, and the police are bringing forward proposals for new trials. We are working with the police on the development of national operational guidance, which will capture the lessons learned, as well as best practice. However, the noble Lord is absolutely right: with all these new technologies, we need to tread with extreme care and balance their proportionate use with the interests of the public.

Lord Harris of Haringey: My Lords, I refer to my interests as listed in the register. Is it not the case that the genie is out of the bottle as far as many of these technologies are concerned? They are in current use in the private sector, as well as being used by investigatory agencies. Can the Minister confirm the regulatory frameworks for the use of these technologies which apply and which are legally binding on the private sector, and will the Government give an undertaking that the police and the other agencies will not be disadvantaged compared with the private sector in accessing and using these technologies?

Baroness Williams of Trafford: The noble Lord makes a good point. As I said to the noble Lord, Lord Anderson, the use of this technology is being looked at by the ICO. It has launched an investigation following concerns about the use of LFR by managers of shopping malls in and around King’s Cross. I have explained the oversight process to the noble Lord but, as I said to other noble Lords, it is very important that the technology is used proportionately and within the law, and of course the court judgment last month confirmed that that was the case.

Lord Paddick: My Lords, is the Minister not concerned that using custody image databases that include pictures of unconvicted people in conjunction with facial recognition technology is potentially a breach of innocent people’s human rights? Is this not another reason why the Government need to take action?

Baroness Williams of Trafford: It might be helpful to the noble Lord if I outlined the types of people who could be on a watch list. They are persons wanted on warrants, individuals who are unlawfully at large, persons suspected of having committed crimes, persons who might be in need of protection, individuals whose presence at an event causes particular concern, and of course vulnerable persons—we must not lose sight of the fact that the technology can be incredibly useful in detecting vulnerable people.

Lord Tunnicliffe: My Lords, surely the problem is that the law in this area is deficient. It is very difficult to balance the utility of the technology against the intrusion on personal rights. Does the Minister not agree that the debate should be held in Parliament and, to that end, that the Government should commit to bringing forward a robust legislative framework for consideration?

Baroness Williams of Trafford: As I said before, we must proceed very carefully with such developing technologies. It is very important that the police have clear legal frameworks within which to operate. However—not one month ago—the High Court said that there is a sufficient legal framework for police use of facial recognition technology. This consists of common-law powers, data protection and human rights legislation, and the surveillance camera code.

Brexit: Medicines and Medical Devices
 - Question

Baroness Thornton: To ask Her Majesty’s Government what steps they are taking to safeguard the supply of medicines and medical devices in the event of a no-deal Brexit.

Lord Bethell: My Lords, the Department for Health and Social Care is doing everything possible to prepare for an exit from the European Union, whatever the circumstances. We have worked with trade bodies, product suppliers and the health and care system throughout the UK and have made great progress towards ensuring continuity of supply to the whole of the UK and its Crown dependencies. I reassure patients that our plans to ensure the uninterrupted supply of medicines and medical products when we leave the EU are as solid as possible.

Baroness Thornton: I thank the Minister for his Answer. This Question was prompted by the National Audit Office report published last week, which justified considerable concern among NHS workers and patients about the availability of basic medicines if the UK crashes out of the European Union.
I wish to raise two specific concerns with the Minister. It seems likely that the availability of the flu vaccine will be affected by a no-deal exit. Andrew Goddard, the president of the Royal College of Physicians, said:
“I can’t … say, ‘Don’t worry, no deal will be fine, no one is going to come to any harm, no one is going to run out of medicines.’ What we can see is we’re likely to not have enough flu vaccine … and that is likely to have an impact on the NHS”.
So will the Minister inform the House whether the department has a plan to deal with this eventuality and, if so, what it is? Secondly, what is the plan for the availability of medicines and treatments that cannot be stockpiled, such as isotopes, which are vital for cancer treatment and which by definition have a short shelf life?

Lord Bethell: The noble Baroness makes a very fair point about concerns about easily diminished medicines such as vaccines and isotopes. I reassure her that plans are very well advanced to provide adequate stocks. The Government have procured a buffer stock of 400,000 adult vaccines, and a large number of measures have been put in place, including the use of air freight, the search for alternative vaccines where necessary and the central stockpiling of very large numbers of medical supplies.
On isotopes, the Government recognise the concerns raised over the transport of products with short lives such as radioisotopes, which is why we have put in place a range of measures. These plans are being developed in close collaboration with the relevant manufacturers, NHS experts and other relevant departments.

Baroness Walmsley: My Lords, in my local pharmacy there is a poster on the wall asking patients not to blame pharmacy staff for the current shortages of medicines and medical devices. While accepting that it is not the pharmacies’ fault, can the Minister say whose fault it is?

Lord Bethell: The noble Baroness makes a very fair point that touches on the challenge of medical supplies that we live with whatever the circumstances, whether Brexit exists or not. Medical shortages happen and are part of the life of the NHS. If anything, this preparation for a no-deal Brexit has shone a light on our arrangements for medical supplies, and they have never been in better shape. One of the advantages of the process that we have gone through is to improve the circumstances. However, as the noble Baroness pointed out, shortages do happen in every country in Europe, including Britain. But I predict that these will happen less and less because of the investment of time and resources into understanding our medical supplies.

Lord Lansley: My Lords, on precisely that point, my noble friend will be aware that, as he said, shortages of medicines are occurring across Europe. That was highlighted in the latter part of last year when a survey of 1,600 hospital pharmacists across Europe found that 92% were experiencing shortages, particularly of antibiotics, vaccines and cancer drugs. So this is an opportunity to secure greater long-term resilience in medicine supply in this country if we work with other Governments across Europe. Will the Government commit to doing that?

Lord Bethell: The Government are working very closely with European partners on the supply of medicines. As my noble friend will be aware, a large proportion of the medical supplies in this country originate from our European partners, and therefore that collaboration is absolutely essential.

Lord Kakkar: My Lords, I declare my interests as in the register. Are Her Majesty’s Government able to confirm that, whatever the nature of our exit from   the European Union, they will not allow the clinical trials regulation to become an impediment to the orderly flow of medicines and medical devices?

Lord Bethell: Clinical trials are one area of particular concern for the supply of medicines, which has therefore been an area of great focus. Special measures have been put in place to ensure the adequate supply of medicines to ensure that existing medical trials can continue whatever the circumstances, including in the case of a no-deal Brexit.

Baroness Uddin: My Lords, the Minister may be aware that there has been an extreme shortage of EpiPens, which treat anaphylactic shocks and severe allergic reactions. Will the Minister assure the House that, in the event of a no-deal Brexit, significant attention will be given to ensure that enough EpiPens are available for the treatment of anaphylactic shocks and allergic reactions?

Lord Bethell: I am grateful to the noble Baroness for bringing to the House’s attention the shortage of EpiPens. It is not a situation I am aware of in particular, but I reassure her that medical devices have exactly the same scrutiny and focus as medicines, and that they will be very much part of the process of ensuring sufficient supplies in the case of a no-deal Brexit.

Lord Tebbit: My Lords, can my noble friend help me? I cannot understand who these wicked people are who noble Lords opposite think would try to hold up the supply of these vital drugs and other materials. Why would they do it? What would be their motive? Who are they? Who are these mysterious and wicked people who will be so angry about Brexit that they will want to take it out on sick people in the British Isles?

Lord Bethell: My noble friend makes a fair point—

Lord Aberdare: Oh!

Lord Bethell: The Government are aware that there is a high degree of public concern on this important issue. We are also aware that the supply of medicines and medical devices is an extremely complicated process, which may have been overlooked in the past. However, thanks to the dry run in March and the ongoing efforts of officials, which I commend and pay tribute to, it has never been in better shape.

Brexit
 - Motion to Take Note

Lord Callanan: Moved by Lord Callanan
To move that this House takes note of the United Kingdom’s withdrawal from the European Union.

Lord Callanan: My Lords, the Motion before us today asks the House to once again consider the UK’s withdrawal from the EU—which   will take place on 31 October, with or without a deal. Of course, this House and its committees have been considering this topic with great scrutiny and interest ever since the 2016 referendum. I pay tribute to the stamina and continued focus of noble Lords in fulfilling this vital constitutional role.
The Government are committed to delivering on this instruction from the British people without any further pointless delay. The outcome that we want, and have always wanted, is a deal with the European Union—but if we cannot agree a new deal, we will have to leave without one.
I must commend noble Lords, including the noble Baroness, Lady Hayter, on their excellent timing in scheduling this debate today; events are indeed unfolding fairly rapidly as we speak. I first highlight to noble Lords that, a short while ago, we published details of the Government’s proposals for alternatives to the backstop. A copy of the Written Ministerial Statement and supporting documentation is now available for noble Lords to collect from the Printed Paper Office.
I recognise, of course, that noble Lords would like to take time to review and consider the content of the WMS and documents, the details of which I will set out in a moment. Before I do that, I reassure noble Lords by confirming that they will have the opportunity to discuss this further in a Statement tomorrow.
This Government have made considerable progress in their negotiations with the EU. We have been working hard to negotiate changes to the withdrawal agreement and political declaration. The Prime Minister has been clear on the nature of these changes. We are unconditionally committed to finding a solution for the north/south border which protects the Belfast agreement, the commitments of which can best be met if we explore solutions other than the backstop. The backstop risks—

Lord Hain: Will the noble Lord confirm, in the light of the Prime Minister’s speech earlier today and the proposals that have just been published, that effectively the Government are saying, “We won’t impose border controls of a customs check character at or near the border, but since that border is the external customs union frontier of the European Union and the Republic of Ireland, it is up to them to do it”? Is that not a despicable, pass-the-parcel, grubby approach to all this?

Lord Callanan: The noble Lord makes his point in his normal forthright manner. If he has a little patience, I will come to the details of our proposals in a little while.
The backstop risks weakening the delicate balance embodied in the Belfast agreement between both major traditions in Northern Ireland, grounded in agreement, consent and respect for minority rights. Removing control of areas of the commercial and economic life of Northern Ireland to an external body over which the people of Northern Ireland have no control risks undermining that balance. Any deal ahead of Brexit  on 31 October must avoid the whole of the UK or just Northern Ireland being trapped in an arrangement where they are a rule taker.
These discussions with the Commission and EU leaders have intensified, with regular sessions taking place over a number of weeks. The Prime Minister’s EU sherpa, David Frost, has continued to lead a cross-party team for these detailed discussions with the Commission’s Taskforce 50, in line with the Prime Minister and President of the European Commission’s agreement to intensify the pace of discussions. Within the last couple of hours in Brussels, he has delivered to the EU the UK’s proposals on a replacement to the backstop. These are the proposals which we have laid in Parliament today.
I know that your Lordships will probably not have had the time or opportunity to read the document published a short while ago. I will therefore set out the main points of the Prime Minister’s offer to the EU. First, this proposal is based above all on our commitment to find solutions which are compatible with the Belfast agreement, the fundamental basis for governance in Northern Ireland.
Secondly, it confirms our commitment to long-standing areas of UK-Ireland collaboration: the common travel area; the rights of all those living in Northern Ireland; and north/south co-operation.
Thirdly, the proposal provides for the creation of an all-island regulatory zone on the island of Ireland, covering all goods and eliminating regulatory checks for trade in goods between Northern Ireland and Ireland.
Fourthly, and unlike the backstop, this regulatory zone will be dependent on the consent of those affected by it. This is essential to the acceptability of arrangements under which part of the UK accepts the rules of a different political entity. In our view, it is fundamental to democracy. The Government therefore propose that the continuation of the regulatory zone after the transition period will be subject to the principle of consent of the people of Northern Ireland.
Fifthly, the proposal ensures that Northern Ireland will be fully part of the UK customs territory, not the EU customs territory, after the end of the transition period. It has always been a fundamental point for this Government that the UK will leave the EU customs union at the end of the transition period, since control of trade policy is fundamental to this country’s future prosperity.
Finally, in order to support Northern Ireland through our withdrawal from the EU, and in collaboration with others with an interest, this Government propose a new deal for Northern Ireland, with appropriate commitments to help boost economic growth and Northern Ireland’s competitiveness, and to support infrastructure projects, particularly with a cross-border focus. Taken together, these proposals respect the decision taken by the people of the UK to leave the EU while dealing pragmatically with that decision’s consequences in Northern Ireland and in Ireland. Together, we believe that these will allow us to reach agreement with the EU under Article 50 and to leave the EU with a deal that both respects the referendum result and provides a strong platform for our future relationship.
As I am sure noble Lords will agree, leaving the EU with a deal on 31 October is the preferable outcome. However, we have stepped up preparations across government and will be fully ready for Brexit on 31 October whatever the circumstances. As the Chancellor of the Duchy of Lancaster made clear in his Statements to the other place, and as I repeated in this House last month on 3 September and again on 25 September, we have indeed ramped up our no-deal preparations. The Government are committed to prioritising stability for citizens, consumers, businesses and the economy. I know that many noble Lords have previously raised the important issue of citizens’ rights. I yet again reassure noble Lords that this Government are clear that citizens’ rights will never be used as a bargaining chip. That is why the Prime Minister has provided an unequivocal guarantee to the more than 3 million EU citizens living and working in the UK that they can have absolute certainty of the right to live and remain in the UK whether we leave with or without a deal. Under the EU settlement scheme, over 1.5 million EU citizens have secured their future in the UK, and the Home Office continues to process up to 20,000 applications per day.
As well as the smooth flow of people from the UK into the EU and vice versa, our economic priorities include ensuring the continued flow of goods. The Government have committed to a number of steps in order to do this. For example, we have committed to introducing temporary easements for traders and hauliers to smooth the transition to new controls; and to maintain continuity of trade, we have signed or agreed in principle 15 trade continuity agreements to date, covering 45 countries and accounting for 72% of the trade for which we are seeking continuity in a no-deal Brexit. The work that we are taking forward will ensure that businesses are ready for exit.
The precise impacts of a no-deal Brexit are of course difficult to predict but we have taken steps to define the potential impact and develop reasonable worst-case planning assumptions upon which we can build our contingency plans. Operation Yellowhammer is the cross-government programme of work to ensure that the Government are prepared to mitigate the potential impacts of Brexit in the event that the UK leaves without a deal.
The Government are ready for and committed to withdrawal from the EU, with or without a deal, on 31 October and without further pointless delay. We have ramped up all our preparations to deliver that. This Government are clear that people want to see Brexit delivered by 31 October, and we are determined to deliver on their wishes. I beg to move.

Lord Goldsmith: My Lords, this is the first full opportunity that this House has had to debate Brexit since the Supreme Court told the Prime Minister unanimously that his Prorogation plan was,
“unlawful, null and of no effect”,
because it had the effect, in their view, of frustrating or preventing the constitutional role of Parliament in holding the Government to account. It is right that this House should have the opportunity to debate  where we are because the Supreme Court particularly recognised that this House too had a role in holding the Government to account, part of our responsibility under our constitution.
During the short period since that decision, much has already been said, and I am sure much will be said today by noble Lords and that their words will be wise and informative. We will also have to deal with and comment on the new information that the Minister has just provided, and I will come back to that in a moment. However, I shall concentrate on two particular matters. Assuming that this new proposed deal does not get either support from Parliament or agreement from the EU, what are the Government going to do? That is what I want to spend a few minutes on, particularly on how the Government intend to achieve what they, including the noble Lord, Lord Callanan, have repeatedly said: that they will comply with the law yet still leave on 31 October.
That mantra of compliance has been much repeated, but we still do not know what the Government mean. This will be the third time that I have raised the question in the House. Of course, it is not a question of generalised compliance, or compliance with the law in general, but of how the Government will comply with the European Union (Withdrawal) (No. 2) Act. That is what has been termed by the Prime Minister the “surrender Act”, which is his favoured term. Language is powerful, as the Prime Minister in particular, as an experienced journalist, knows; but that is a misuse of language and a dangerous one, as colleagues have pointed out, particularly in the other place. Language has been a political tool, at least ever since Erik the Red misnamed frozen Greenland to attract more settlers to his new land. This Act in fact surrenders nothing. It is Parliament which, in the Act, has set the date of an extension of three months, which is to be triggered.  If the EU accepts that date, then that is the extension. If the EU proposes another date, that has no effect unless Parliament accepts it. So it is Parliament that is in control. If there has to be a nickname for this, other than the Benn Act, the “parliamentary sovereignty Act” would be a more appropriate name.
Let us look for a moment at what compliance with the Act means. It means more than a bare adherence to the minimal interpretation of the words of the law; it means an acceptance, too, of the spirit of the law—what Parliament, what we, intended by the law. So what are the Government actually doing? From all the statements that have been made, it looks as though, if the Government cannot get this deal through, either with the EU or in the other place, they are looking for a way to circumvent the law, to try to find a way round it. We expect more from people in high office. We expect good faith and respect for the spirit of the law. Mr Johnson has impoverished our society and our politics with his unlawful scheme to shut Parliament up. Let us hope that he does not impoverish it further by looking for shoddy tricks or shabby stratagems to get round what Parliament has ordained.
What will the Government do? The internet has been buzzing with different ideas of loopholes and workarounds. There are none. As the former Supreme Court Justice, Lord Sumption, said on the BBC, the  courts disfavour finding loopholes. The earliest of the “loopholes” suggested was that the Prime Minister could accompany the letter of request that he is obliged to send with another letter saying that he does not want an extension at all. However, that would clearly be contrary to the Act. The Act requires that he should “seek an extension”, and you do not seek an extension if, at the same time as asking for it, you say, “Please don’t give it”, or keep your fingers crossed behind your back, as in the playground. This is not playground politics.
My first question to the Minister, when he winds, is on what reassurance he can give about what the Government plan to do in the event that this new proposal does not meet favour with the EU or with the other place. Let me spell out the question more clearly so that there is no room for misunderstanding or, forgive me for saying so, evasion. The Government say that they will comply with the law yet leave on 31 October. The Act allows two ways in which that can happen. First, if, by 19 October, a deal has been agreed with the EU—it will have to be this deal, according to what the noble Lord has said—which the House of Commons has approved and, indeed, this House has debated too. Or, if the Commons has agreed that we can leave without a deal and, again, this House debates that question as well. The clear question becomes: if, by 19 October, neither of those things has happened—there has been no agreed and approved deal and the House of Commons has not agreed that we can leave without a deal—will the Prime Minister “seek to obtain” an extension under Article 50(3), as the Act requires? Secondly, and importantly, will the Government agree not to undermine the request by second letters or other messages or statements which contradict the request?
One of the most disturbing suggestions that we have heard in recent days is that the Government could rely on the Civil Contingencies Act. This is the second “loophole” that I want to mention. That would mean using the powers in the Civil Contingencies Act to override or indeed revoke or set aside the Benn Act. There are a number of reasons why that would be wrong. First and foremost is because the great powers that do appear in the Civil Contingencies Act only arise if there is an “emergency”. That arises only when the Government are satisfied that,
“an emergency has occurred, is occurring or is about to occur”.
According to the Act, “emergency” means,
“an event or situation which threatens serious damage to human welfare … in the United Kingdom”,
or in a part or region of it. It would still be necessary to show that urgent provision has to be made to address that emergency. Noble Lords will agree that that situation does not apply at the moment. However, the suggestion that this Act might be employed is worrying, because if civil unrest or riot, or the prospect of them, were invoked, the Government might then claim that the statutory conditions to revoke the Benn Act were in fact in existence. It is a worry that some Ministers appear to be talking up the risk of unrest, perhaps precisely with that intention in mind. That would be cynical and unlawful.
Another idea which has been floated, and apparently attributed to the Foreign Secretary, is that the Benn Act somehow conflicts with EU law. There is a lovely irony in the Government relying on EU law to get out of this particular problem. However, I do not understand the argument at all. It is no way inconsistent with Article 50 to ask for and agree extensions to the leaving date. That is what we have done at least once already, and it is fully consistent with Article 50. All the Benn Act does is require that a request for an extension is made if certain conditions are fulfilled: namely, that the Government have not persuaded the other place to agree to a deal that they have reached or to agree that we can leave without a deal. What is more, although I do not think it arises, Article 50 requires our notice to leave to be given in accordance with our constitutional traditions. That is what has happened. If it further required that extensions should be requested in accordance with those traditions, that has happened too, because it is pursuant to an Act of Parliament passed by both Houses that the Prime Minister will be required to make this request.
I will not deal with other suggested loopholes, save to say that all, in my view, are wrong. However, even though they are wrong, dealing with such arguments will take time. The worry is that the Government will run down the clock so that there is inadequate time to get decisions from either Parliament or the courts. Therefore, I am not surprised to read that other legal actions are already being planned. Clear answers from the Government today could help to render those unnecessary, so we look forward to hearing what the Minister will say in winding up.
The second issue I will raise—the Minister touched on this in his remarks, but I want to probe him a little further—is what the consequences of a no-deal Brexit would be. If the House of Commons is to approve a no-deal Brexit, clearly the Government are under an obligation to give full, frank and honest advice about the consequences for the British people. How do they intend to do that? We started with the leak of Operation Yellowhammer documents. Will the Government update and release the results of that inquiry? If so, when? We need to know.
I turn now to the subject of the Minister’s opening remarks. Of course, the third important issue is what new terms of the deal there are. If the Government can persuade the EU and the other place to accept those terms, that is one thing. They, and we, will need to examine them closely. During the course of today, others will no doubt comment on them. I want to make some brief initial comments. First, it is telling that this statement is released just as the Conservative Party conference comes to an end. The result of that was that the Prime Minister did not have to debate its contents and merits with the conference itself, which might have been a difficult job. It also means that we and the other place have less time to deal with it. Secondly, as noble Lords will recall, there was a commitment that there would be no more infrastructure or physical checks on the Irish border. I am not at all clear from reading and listening to the Minister whether that is in fact what these proposals will do. That needs to be probed as we go through this. Thirdly, it also seems that this provides for separate regimes for Northern  Ireland and the rest of Great Britain. Again, the Minister will no doubt confirm that remark, or otherwise. That is a very important consideration which has been a terrible problem for many people in the past.
Those issues will need to be examined. I will say no more about them at this stage, but I have no doubt other noble Lords will during this debate, including my noble friend Lady Hayter. I am glad to hear—and for this I thank the Minister—the announcement that a Statement will be made tomorrow. The usual channels will have to consider how long to allow for that Statement, as I imagine many noble Lords will want the opportunity to speak to it.

Lord Wallace of Tankerness: My Lords, these Benches also welcome the debate. A benefit of the purported Prorogation being nullified is that we are able to hold the Government to account on this crucial issue, at such a crucial time—just 29 days before the date, set back in April, for the further extension of Article 50. Donald Tusk was reputed to have advised the United Kingdom not to waste this time.
Today we have learned, and have heard from the noble Lord, Lord Callanan, that the Prime Minister has made what was being trailed this morning as his final offer. It could equally be described as his first offer. We will have to study this in detail. If one looks, for example, at the suggestion that it provides for the potential creation of an all-Ireland regulatory zone on the island of Ireland, it might appear that the Government’s attempt to get around the border problem is to create two borders. Maybe that is why the Prime Minister has the idea of a bridge between Scotland and Northern Ireland—so it can have a regulatory checkpoint half way across.
The Irish border has been a real difficulty ever since Theresa May set out her mutually contradictory red lines: out of the single market, out of the customs union and no hard border on the island of Ireland. The last of these commands widespread support, but the first two amounted to acquiescence to the right wing of the Conservative Party. It treated the outcome of the referendum as if it had been 95:5 and not 52:48. It was in the interest of holding her party together, rather than the national interest. In December 2016, the European Union Select Committee of your Lordships’ House, in its sixth report, said:
“Retaining customs-free trade between the UK and Ireland will be essential if the current soft border arrangements are to be maintained … Nor, while electronic solutions and cross-border cooperation are helpful as far as they go, is the technology currently available to maintain an accurate record of cross-border movement of goods without physical checks at the border”.
That conclusion of the Select Committee has stood the test of time.
Clearly what we have been seeing today will require analysis, but the real concern with any infrastructure, whether at the border or 10 miles removed from it, is that we will see a reversal of the gains of the Good Friday agreement. It will significantly disrupt all-Ireland trade, as well as impact local communities. When the Minister replies, can he confirm that the proposals that have been submitted to the European Commission  today would, if carried through, mean there will be no need to amend Section 10 of the European Union (Withdrawal) Act 2018 at all? It says that:
“Nothing in section 8, 9 or 23(1) or (6) of this Act authorises regulations which … create or facilitate border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature physical infrastructure, including border posts, or checks and controls, that did not exist before exit day and are not in accordance with an agreement between the United Kingdom and the EU”.
It is important to get that reassurance.
The immediate priority of my party—indeed, of many—is to ensure that the United Kingdom does not crash out of the European Union on 31 October, without a deal. That is why we wholeheartedly supported the legislation promoted in your Lordships’ House by the noble Lord, Lord Rooker, which is now the European Union (Withdrawal) (No. 2) Act 2019. That has sometimes been traduced as an attempt by remainers to frustrate Brexit in its entirety. It is worth pointing out that that Bill was supported by both remainers and leavers. It is fair to say that, in the House of Commons, there were ex-Cabinet Ministers who had voted for the leave agreement more often than the Prime Minister himself had. Therefore, it is wrong to characterise it as being a device or ploy by remainers to frustrate Brexit. It was intended to frustrate Brexit without any deal, which is an important distinction.
When questioned last Thursday, the Minister—as picked up by the noble and learned Lord, Lord Goldsmith —said that the Government would obey the law, but refused to say what the Government understood the law to be. I very much hope that the very detailed analysis the noble and learned Lord has given will be fully responded to by the Minister.
We oppose no deal because, while we believe that leaving the EU at all on any terms would be damaging to jobs, the National Health Service, small businesses, farmers, the aspirations of our young people, to others and to our prosperity, we believe that crashing out without a deal, as foreshadowed in Operation Yellowhammer, would inflict serious damage indeed, not least on the most vulnerable members of our society. Serious job losses, the anxieties of cancer patients, bleak prospects for rural farmers: these were never displayed on the side of buses during the referendum campaign. Indeed, in April 2016, just two months before the referendum, the now Foreign Secretary, Dominic Raab, said on the BBC’s “Daily Politics” that,
“the idea that Britain would be apocalyptically off the cliff edge if we left the EU is silly”.
In March this year, in a newspaper article, Mr Michael Gove said that,
“we didn’t vote to leave without a deal. That wasn’t the message of the campaign I helped lead”.
There is no mandate whatever for leaving without a deal.
In his remarks, the Minister said that the Government have ramped up no-deal preparations. We had a Statement last week on Operation Yellowhammer on the dire consequences of a no-deal Brexit, and the publication of a document about which the First Minister of Scotland, Nicola Sturgeon, said she could see no  difference from the one she had previously seen, except that what had previously been described as a “base scenario” had now been changed to “worst case scenario”. But can the Minister tell us about some of the other operations we believe the Government have prepared briefings and detailed analysis of, such as Operation Snow Bunting—the policing response in the event of a no-deal Brexit?
On the subject of policing, will the Minister comment on evidence given yesterday to the Justice Committee of the Scottish Parliament, in which the deputy chief constable of Police Scotland was reported in the Times as having said that Police Scotland has been denied access to sensitive plans to handle civil disruption after Brexit? He said:
“We have, frankly, at times struggled to access some of the more sensitive elements, or layers, of those planning assumptions … Some of those planning assumptions have tended, at times, to be quite London or south of England-centric, and we’ve been constantly reinforcing the different legal and constitutional arrangements in Scotland”.
It would be very helpful if the Minister could tell us what attempts have been made to address these concerns expressed only yesterday by the deputy chief constable of Police Scotland.
We are told that there is an Operation Kingfisher—a bailout fund to prop up businesses in the event of a no-deal Brexit; and an Operation Black Swan, a worst- case disaster scenario for surprise events with huge repercussions. Can the Minister give us more details of these contingency planning analyses, which we understand are going on within the Government but they are not being totally open about? Are they planning to have any other birds? One could speculate whether Operation Emu might be for a plan that will not fly.
At the time of the attempted Prorogation, a number of pieces of legislation had not been completed. The Queen’s Speech that started this Session back in June 2017 foresaw,
“legislation to ensure that the United Kingdom makes a success of Brexit, establishing new national policies on immigration, international sanctions, nuclear safeguards, agriculture and fisheries”.—[Official Report, 21/6/17; col. 5.]
How many of these Bills have actually been passed? What about the ones which have not? Are the Government saying, having thought that they were necessary to make a success of Brexit, that Brexit will not be a success because they have not passed them?
If one listened to the exchanges in the Supreme Court on the final day of the recent case, the Advocate-General for Scotland, the noble and learned Lord, Lord Keen of Elie, appeared to say that the Government had provided the court with an explanatory note on Brexit-related primary legislation not required for an exit date of 31 October. It would be very helpful, if that note exists—I understood that it was given to the court—if it could be placed in the Library so that we could see the Government’s analysis of legislation that has not been passed. In the event of an agreement being reached, can the Minister also tell us how quickly he thinks the implementation legislation could go through your Lordships’ House?
I have two concluding points. We are told constantly that the theme of the Conservative Party conference is, “Get Brexit done by 31 October”. That conjures up an idea that simply leaving with or without a deal is all that is required. Should that happen, people will very quickly realise that that is only the end of the beginning; that a new, and likely very long, phase of negotiations on our future relations with the European Union would ensue, even longer and more difficult were we to crash out without a deal. There is no sign that the Government have given any thought to the way forward, so what kind of public disillusionment will be created by the kind of simplistic sloganizing that does not bear out reality?
On these Benches, we believe that the best way forward is a people’s vote. Can any of us for one moment think that if the June 2016 result had been 52 to 48 the other way around Brexiteers would have said, “Fair cop, guv, we’re packing up our tents and we are going to quit the field”? Of course they would not. Painful though it would have been to have heard Bill Cash continue to go on, I would have respected the long-term and long-held beliefs of people who have opposed our membership of the European Union for a long, long time. Why, therefore, should not my colleagues and I be afforded a similar respect for the beliefs that we have held for a long time? Why should we abandon those views that we have held for decades? If there is not a people’s vote, we have said that we will campaign in a general election for a majority and a democratic mandate to revoke Article 50.
Brexiteers do not have a monopoly on patriotism. I believe passionately that the prosperity, security and the well-being of our country and the communities that we serve—and not least future generations—are best achieved by our continuing membership of the European Union. No one is going to deny our right to campaign for it.

Lord Butler of Brockwell: My Lords, since we last debated Brexit, much has changed and yet, in many ways, nothing has changed. In some respects, we have gone backwards. We are looking for a new departure arrangement having renounced Theresa May’s agreement, which many of us, however reluctantly, were finally willing to support—including the present Prime Minister. Yet in the gloom, I believe there are some hopeful signs, to which I will return.
Let me first say in parenthesis that I saw nothing surprising or constitutionally revolutionary in last week’s ruling of the Supreme Court. Since the noble Lord, Lord Pannick, was sitting beside me, let me say that in view of the large television audiences for the proceedings of the court and following the ending of the televising of the Ashes contest, my noble friend has a claim to have become the Ben Stokes of the legal profession.
My career was spent in an era when judicial review became established as a means of challenging unreasonable exercises of power by the Executive. Although Prorogation took place geographically in Parliament, it was an act of the Executive: Parliament did not have a chance to vote on it. For me, the crucial sentence in the judgement was:
“It is impossible for us to conclude … that there was any reason—let alone a good reason—to advise Her Majesty to prorogue Parliament for five weeks”.
A five-week Prorogation of Parliament at a crucial time when, as we will see next week, only a few days are needed to prepare for a Queen’s Speech, was an unreasonable exercise of the prerogative by the Executive. That is what the ruling was about; it was not about Brexit.

Lord Forsyth of Drumlean: I have huge respect for the noble Lord and I value his advice. He is arguing that the process of Prorogation did not constitute proceedings in Parliament. Does he think the same is true of giving Royal Assent to Acts of Parliament?

Lord Butler of Brockwell: That is a legal issue on which I do not want to reply immediately. I think that is a proceeding in Parliament, but this was an act of the Executive, which happened to take place in Parliament.
The result of the Supreme Court’s judgment is that this House is sitting today and we have an opportunity to make our contribution to the debate, so I welcome this occasion. I hope that the Government get a deal with the EU; and there are some hopeful signs, although perhaps not as many as the Prime Minister claims. The DUP now seems prepared to support a deal on the broad lines the Prime Minister is outlining. The Irish Government, although by no means convinced by the details so far reported about the Prime Minister’s approach, appear to have realised that no deal would be a severe economic blow to them. The European Union wants a deal and is prepared to accept a greater role for the Northern Ireland Executive regarding the arrangements affecting Northern Ireland. As the noble Lord, Lord Howell, pointed out to us in our previous debate, constructive suggestions about alternative arrangements for border controls have been made by the commission established by Prosperity UK.
Yet the prospects of reaching an agreement on all the necessary details by 31 October, let alone 17 October, are so remote as to be impracticable. So what sort of agreement do the Government envisage by that date? I understand that the Minister will not be able to tell us any more tonight, beyond what is in the Prime Minister’s so-called final offer to the EU and the documents that have been placed in the Printed Paper Office. But realistically, we must accept that it seems impossible that an agreement will be reached on 17 October, except perhaps on ways of temporarily mitigating the effects of no deal.
In that case, a request for a postponement under the European Union (Withdrawal) (No. 2) Act seems inevitable. People understandably ask, “What would be the purpose of an extension?”. The Minister described it as “pointless”; I was surprised by that adjective because one benefit would be the general election which the Government have been seeking. It would, presumably, take place in late November or early December and might produce a Government able to hammer out a policy which would command a majority in Parliament, and with whom the EU would have to negotiate seriously. If that were the outcome, it would be a price worth paying for a further extension. It would  at least be preferable to the present paralysis and, in my view, greatly preferable to leaving on 31 October without a deal.

Lord Howell of Guildford: My Lords, as the Government are in mid-negotiation with the European Commission, with Belfast and Dublin, and no doubt with other political forces in the other place, it is a little difficult to debate this issue this afternoon with full confidence—particularly as we have had about 10 minutes to absorb the outlines which my noble friend the Minister so kindly gave of the Government’s new proposals. The rest remains not only in negotiation but deliberately veiled. I understand that the Government want Brussels to try to keep these matters secret. That is a pretty forlorn hope but anyway, the veil has not yet been fully lifted so it is a little hard to see the full picture. Nevertheless, I intend to concentrate on that and, as the noble Lord, Lord Butler, said, to try to be positive about these matters rather than getting too bogged down in the sort of endless “What if?” speeches we have had, such as that of the noble and learned Lord, Lord Goldsmith.
It is assumed that there will be no withdrawal agreement and that we will arrive at 31 October with the Government saying that they are determined to leave and the Benn Bill saying that they should not. Let me put that aside to look at the positive prospects and what we can deduce from what has been said in the various capitals about the attempt to find an alternative to the backstop. I note that in this House only a fortnight ago, some of us who dared to raise the idea that there was a question to be asked about an alternative to the backstop were told by all the experts—distinguished former Northern Ireland Secretaries and others whose judgment I greatly respect—that it was out of the question. We were told, “It can’t happen. It’s never happened anywhere else. There is no conceivable alternative to the backstop and nothing else will be considered”.
Since then, even Jean-Claude Juncker has said that there is an alternative. Since then, the Times and the Financial Times have pronounced with great authority that there can be no alternative, it is quite wrong to assume that there can be any possible difference from the past, the backstop is here to stay, and it is all out of the question. Now it turns out to be in the question. I do not say that we have an answer. Maybe the critics and the sceptics on both sides—both the remainers who do not want there to be a deal of this kind and want to stay in, and the super no-dealers who do not want there to be any kind of withdrawal agreement because they want to leave without a deal—will go on questioning and hoping for a negative answer, but I am not so sure at all. I noticed in the speech by the noble Lord, Lord Butler, and in many other comments, a hint of possibilities and that the simple, crude backstop, which was so indigestible, does have alternatives. They are complex and technical and involve very special arrangements of a kind that have never happened elsewhere in the world—but Ireland is special.
I just make a few comments on the situation in Ireland. It is worth noting that there has always been a border between Northern Ireland and the Republic,  not only before we all joined the European Union, but for the last 40 years. It is a border that is heavily policed by Her Majesty’s Revenue and Customs. There have always been massive, complex cross-border tax and regulatory issues that have had to be dealt with by endless experts and consultants. If you ask any senior businessman in Northern Ireland, they will tell you all about the arrangements that arise as a result of there being a border. The most obvious one is VAT: 23% in the Republic—with a whole range of derogations, right down to 4.8%, I think, on greyhounds—and  20% this side of the border, in the United Kingdom, although we have been in the EU so far. That is just one example of the whole list of differences on payroll, labour provisions, the currency, which is of course quite different, transfer pricing and a whole range of other issues. Yet everyone has managed quite well with an invisible border.
Why, when we move into this new situation, it should become so impossibly difficult, I do not understand. I do not understand the voices that are still coming from Dublin saying, “No, we don’t want any of that at all”. I have to ask—I think any reasonable person has to ask—what exactly does Dublin want? We want co-operation and constructiveness with the Republic of Ireland. We have a very close relationship, bad in the distant past but better in the last 50 years, and we want it to be better still. Do those in Dublin want to get rid of the common travel area that has been with us since 1922? If they do, it will be very painful for them. Do they want to build a physical border to mark the edge of the EU? Again, I cannot believe they really do, but that is the consequence of being negative about the proposals and allowing things to drift to no deal.
Under the new proposals, as I understand it, we have two, or maybe even four years—I am not quite sure; I am going by the Daily Telegraph, which may not be all that reliable—to sort out how these new arrangements could really work in practice. Over those several years, a lot will change. A lot will change here, because we will see far greater devolution to all the regions, including Northern Ireland, Scotland—if it does not go independent—and Wales. We will see the status of all devolved Governments vastly increase in this country in the digital age. We might as well recognise that that is what is coming and that a new pattern will develop if we can show patience. If this Parliament can show patience and can agree to a withdrawal agreement, then we can go forward constructively. If this Parliament remains paralysed and cannot ever reach agreement, then I fear the obvious outcome—which many of us predicted all along—is a general election and a new pattern, which may be slightly better than that which, so far, the House of Commons has been able to deliver.

Lord Liddle: My Lords, I fear that we are on the verge of a very great constitutional crisis—probably the greatest since the Conservative Party leadership flirted with defying the law in the last days of the Asquith Government before the First World War on the question of Irish home rule. It was only the  First World War that saved us from that, and no one would want to see that as the deus ex machina which saves us this time. What is the crisis? It is that, from what, on a quick reading, we know of the Government’s alternatives on the Irish question today—and of course we have not had a lot of time to look at it—I cannot believe that they are a serious proposition. To me, they come across, I am afraid, as a ruse invented in London to put the blame on the European Union for a no-deal breakdown.
They are not serious for four principal reasons. First, they breach the solemn promise that was made in the December 2017 joint agreement between the EU and Britain—a promise, by the way, to which Boris Johnson was fully a party, as a member of the Cabinet who did not resign at the time—that ruled out the reintroduction of a customs border in Ireland and promised a solution based on full regulatory alignment. It is all very well for Mr Johnson now to claim that these reintroduced customs checks would not be “at or near” the border, whatever that might mean. The central point is that the new Government have changed the whole basis of their approach to the Irish issue from that of their predecessor under Mrs May—from one of how to achieve the full alignment that makes talk of borders unnecessary, to one of how to minimise the disruption of customs controls. The fact is, for all that the noble Lord, Lord Howell, says, there is nowhere in the world where customs controls do not require physical infrastructure.
Secondly, the British Government are expecting the Republic and the whole of the EU to sign off on this principle without detailed agreement on the practicalities. That suggests that the Government do not actually have an answer on the practicalities.
Thirdly, the UK is apparently proposing that this arrangement will be temporary: it will have a life of only four years and then it will be up to the Northern Irish. However, in practice, the way they have put it, as I read it, is that it would give the DUP a veto: it would not be representative of Irish opinion in Northern Ireland as a whole.
Fourthly, is this a take it or leave it offer or not? I hope that the Minister will enlighten us, because if it is take it or leave it, it does not fill me with optimism. Therefore, let us not be under illusions: under this Government we are heading for no deal. And let us not kid ourselves that the deal they would actually seek if they avoided no deal would be that much better, because their firm intention is that Britain will leave both the single market and a customs union at the end of the withdrawal agreement’s transition period. We may avoid chaos in December, but 14 months later we would have the certainty of no frictionless border with the EU, a self-imposed calamity for all our manufacturing industries with integrated supply chains, and potentially significant disruption to our present competitive position in services.
The Government may say that that is nonsense, and that by then they will have negotiated the most wonderful Canada-style free trade agreement with the EU. Let us be clear: they will not have done. That is not just because of the shortage of time. There has been,  again under Mr Johnson, a very significant change of government policy. Boris Johnson wants Britain to be  a competitor with the EU, not to converge with the EU’s standards. He wants to jump EU regulations; he wants to remove EU protections; he wants to slash taxes. Can he be serious on this point? How can our EU neighbours offer us preferential access to their markets if our policy is to create a deregulated tax haven across the channel, 20 miles away? It is not going to happen, and we will suffer a great deal as a result. So I fear that we are in a very difficult situation on Brexit.
I will end with a word about democracy. A general election, which the Conservatives want, could result in a majority in Parliament for no deal—but that could be won, under our first-past-the-post system, on 33%, 34% or 35% of the vote. For me, and for many others in this Chamber, that would have absolutely no legitimacy. The only democratically legitimate solution to the problem that we have is a referendum. If we want to avoid a constitutional crisis, that is where we should now go.

Baroness Smith of Newnham: My Lords, I too planned to talk about democracy, but I thought I would start by referring to a brief encounter I had with a policeman at the bottom of my staircase this morning. I arrived and said, “Good morning”, and he said, “Brexit today, ma’am”. I paused, and momentarily thought, “I wish”. Then I remembered that, as a Liberal Democrat, I clearly do not wish that it were Brexit today. But I suspect that I am not alone in wishing that we were not four years from the day when this House started to debate the European Union Referendum Act 2015, because for the past four years, we seem to have been debating the same issues day after day in a stultifying Chamber, in a stultifying parliamentary system, which seems not to be getting us very far.
The Minister suggested this afternoon that we are finally making progress—indeed, this debate is to note our withdrawal from the European Union—but it is not clear how close we are to withdrawal. There are questions about the nature of our withdrawal, what it will mean and where the United Kingdom ends up. Much of the rhetoric during the referendum was about voting leave, taking back control. Taking back control could mean whatever the voter wanted it to mean about borders. The Home Secretary yesterday seemed to get very excited about the opportunity to take back control of borders.
Another issue appeared to be taking back control to Parliament—bringing decisions back to the United Kingdom—because the leave campaign told us that the European Union is not democratic. Yet the European Union has free and fair periodic elections once every five years to elect the European Parliament. This year, that included the United Kingdom. We were not supposed to have European elections this year, but so glacial is the process of our departure that we did. The United Kingdom, like the other 27 members, has the opportunity to elect Members of the European Parliament. That  is a type of democracy. The House of Commons is also democratically elected. The House of Commons and your Lordships’ House are supposed to take  part in the legislative process, but also in scrutinising the Government.
As the noble and learned Lord, Lord Goldsmith, made clear in his opening remarks, one of the points that the Supreme Court made last week is that it is also up to this House to scrutinise the Government—yet we seem to have a Government who wish to ignore Parliament. We heard earlier in Questions about the role of special advisers and of one Mr Dominic Cummings, a special adviser to the Prime Minister who is in contempt of Parliament. What does it say about the Government’s approach to Parliament that such an important special adviser is in contempt of Parliament?
The attempt to prorogue Parliament for five weeks, if not a contempt of your Lordships’ House and the other place, suggests that Nikki da Costa, the director of legislative affairs, perhaps does not fully understand the role of Parliament. In the advice given to the Prime Minister, there was a suggestion that while 34 days might be lost through Prorogation, that was actually only five sitting days—as if sitting in plenary session is the only thing that Parliament does. Had that Prorogation taken effect, we would not be able to ask questions, the Government could not be held to account and committees could not sit—and that is what the Government seem to want.

Lord Lamont of Lerwick: The noble Baroness is making an interesting speech about democracy, but would she explain one mystery that I really do not understand? How is it that the Liberal party was the first party to propose an in/out referendum on this issue? Indeed, the present leader of the Liberal party repeatedly criticised David Cameron for not proposing an in/out referendum before he did. How can the Liberal party, having been in that position, now say it is going to ignore the results of the referendum?

Baroness Smith of Newnham: My Lords, I am delighted to take that intervention, and particularly delighted that I am taking it not from the Liberal Democrat Front Bench. Four years ago, when I was speaking from the Front Bench on the referendum Bill, I was intervened upon by the noble Lord, Lord Forsyth, who, when I said I was rather sad to be having to speak in a debate about a referendum, reminded me that the Liberal Democrat position had indeed been to support an in/out referendum. That has been our party policy. Like that of other parties, the Liberal Democrat position is one—
I hear from a sedentary position something about opportunism. I am a Liberal Democrat; I believe in democracy. I did not vote against triggering Article 50. I personally accept the result of the referendum but, as we have already heard, Michael Gove, who is currently responsible for the Government’s no-deal preparations, also said we were not preparing for a no-deal Brexit. That was not what people voted for.
We are in a position in which Parliament is incapable of delivering Brexit unless this Prime Minister manages to pull a rabbit out of a hat with his letter to Jean-Claude Juncker.
I can hear my Whip saying “time”. However, I was intervened on, and nobody else has so far taken any notice of the Clock, so at this stage I am not going  to either.
We are in a position in which the Government have not been able to deliver Brexit and Parliament has not been able to come to a solution. The way around that is another referendum. The Liberal Democrat position is that if a general election came first and we had a majority, we would want to revoke—so be it—but we are not at that stage.
I would have had another minute had I not been intervened on. I ask the Minister: what are the Government proposing to do? Unlike other noble Lords, I will assume that the Prime Minister gets his deal on 17 October and we get to the point of the House of Commons accepting the deal. That might  be 19 or 21 October. Do we not need a withdrawal implementation Bill to deal with that agreement? How do the Government propose to get that through Parliament? There was filibustering from the Government Benches when we tried to get through a very brief piece of legislation before the non-Prorogation. This would be a much more serious piece of legislation. Do the Government really envisage getting it through both Houses in 10 days—calendar days, not working days? If so, how does the Minister propose to do that?

Lord Bethell: My Lords, there is an advisory Back-Bench speaking time of six minutes. We have been consistently over that time. For the fairness of the House, I wonder if we can try to stick to that.

Earl of Kinnoull: My Lords, it is a great pleasure to follow the noble Baroness, who spoke with her customary zeal and energy. Before I make my brief remarks, I want to note how busy the EU Committee structure is. The family of committees is meeting and the great machinery that is scrutiny has restarted and continues apace. The 43rd of our Brexit reports is in its final stages of preparation. The 16th of our Treaty reports will be out next week. I pay tribute to our 26 staff.
I wanted to use my time on one issue of great concern to me and the EU Committee. Indeed, at our meeting yesterday the majority of our time was taken up with it. I speak of the new policy on UK participation in EU meetings—the empty chair policy. On 20 August the UK wrote to the EU Council and said that going forward, UK Ministers and officials would participate in EU meetings only where,
“the UK has significant national interests involved”.
Some guidance was given in the letter about what that might mean, and later in the letter the position of our vote was discussed. I quote from the letter again:
“Where necessary therefore, the UK will make appropriate arrangements regarding its vote”.
This was subsequently clarified as meaning delegating the UK’s vote to Finland, which currently holds the rotating EU presidency. The committee understands that UK officials and Ministers now attend about one-third of EU meetings.
On that stark set of facts, I have three points to make. The first is one of perception: our partners take this badly. I have spent a number of days in Europe  talking to partners since I became chairman. The Government have often said that we would take a full part in the affairs of the EU until we left. On 16 September the General Affairs Council of the EU met—the EU format that would have expected to welcome our Foreign Secretary. Sixteen Foreign Secretaries from other nations were present; the other countries sent either their Deputy Foreign Secretaries or their permanent representatives. Our chair was empty. As one senior European put it to me, “I don’t see how one develops a deep and meaningful relationship by being absent”.
Their bafflement is all the greater as there is a far from zero chance, given the provisions of the Benn Act, that we will continue our membership beyond 31 October. Even if we do leave on that date, the next step will undoubtedly be to seek to open fresh negotiations. What sort of preparation is it for those negotiations for the UK to sign out of discussions on the entire range of EU legislation? Our UKRep team—recently beefed up—is hugely experienced and able to deputise for Ministers where necessary.
The second problem is that there is insufficient clarity about which meetings we will attend. The EU Committee in a letter of 4 September asked for more detail on this. The Minister answered very quickly on 9 September—I thank him for that speed—but I regret that his answer had the effect of reducing clarity. The test is now only,
“what the Government considers to be in the national interest”.
It was also noted that:
“Attendance will be decided on a case by case basis”.
That lack of clarity is bad for our EU 27 friends and partners and for Parliament in our scrutiny work. Our correspondence on this matter continues.
The third problem is one of accountability. The scrutiny reserve resolution of March 2010 sets out the Government’s commitments on how scrutiny operates and how Ministers will vote on matters that are still the subject of scrutiny. Some 200 files are currently under scrutiny by the EU Committee, which is very clear that it expects the Government to continue to attend any and all meetings that relate to files held under scrutiny. We are not imagining that scrutiny will continue unchanged after Brexit day. It is clear that on that day the scrutiny reserve will fall and that our internal processes will change fundamentally. However, we had a clear understanding with the previous Government that until exit day the existing scrutiny processes would continue and the Government would give the committee their full support. Can the Minister confirm that that is still the case?
In his letter of 9 September, the Minister made reference to delegating the UK’s vote to the presidency country, Finland. Can he further confirm that the Government share my understanding that any vote cast by the presidency on behalf of UK will engage the terms of the scrutiny reserve?
I am pressing the Minister on those points in part because of an alarming letter that we recently received from the Department for Business, Energy and Industrial Strategy concerning our scrutiny of a draft regulation for the single market programme. It is quite an important regulation. The letter asks us to clear this matter from scrutiny on the basis that:
“HMG officials will no longer attend the working party responsible for drafting the Regulation for the Single Market Programme. Consequently, the Government will not be able to provide a meaningful update to the Committees”.
It continues:
“As UK ministers and officials will have no further role in shaping the Regulation ... I am writing to formally request that”,
it,
“be cleared from scrutiny”.
The empty-chair policy is being used, it would appear, to try to circumvent the scrutiny of both Houses on matters of direct and, in all probability, continuing interest to the UK and UK businesses.
In our democracy a major and core ingredient is respect for institutions. Indeed, we now know that this respect is a matter not just of convention but of law—Lady Hale has told us. The empty-chair policy raises questions over the Government’s respect for this House, for the scrutiny reserve and for our ongoing relationship with the EU institutions. I suspect that we will hear more about this today, and I look forward to the Minister’s reply.

Lord Mackay of Clashfern: My Lords, it is always a privilege to follow a fellow Scot, although I will deal with a rather different matter.
We are dealing with the proposals in Article 50 for withdrawal from the European Union. It is important to note that, once a country such as ours has given such notice, it is the duty of the Union—I want to read the exact words—to,
“negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”.
In other words, the withdrawal agreement has nothing whatever to do with the future relationship, except that it be in the light of that future relationship. That is the agreement we have to reach, and it is that agreement and that agreement only that defines the date on which we leave the European Union. There is no requirement to agree any arrangement about future relationships. That is a framework, not an agreement—a framework which is set up at that time. Therefore, it is extremely important to realise that, in order to satisfy the rules of the European Union set out in Article 50, we are not required to agree the future relationships. Those are for the future. The immediate matter is to agree the terms on which we withdraw. One term which has been negotiated so far, and which I hope will continue, is that there will be an implementation period in which the rules remain substantially the same.
Therefore, the question of the withdrawal agreement is quite simple. It deals with matters and obligations that arise at the withdrawal date, and that date—the one on which the withdrawal agreement is agreed—is the date for leaving the European Union. Also, Article 50 does not mention anything about crashing out or any expression of that sort if it is not possible to reach an agreement two years after the original notice; it just says that that is what will happen.
In my submission, it is absolutely essential that future relationships on the one hand and the obligations of withdrawal on the other are distinct and separated   out from one another. Otherwise, we have a terrific burden of trying to agree the future relationships at this stage, when Article 50 clearly contemplates that that is a distinct matter and does not require agreement for now. I am hoping to be well under the six minutes, because that is what I have to say.

Lord Whitty: My Lords, I congratulate the noble and learned Lord, Lord Mackay, whom it is always a pleasure to follow, and I shall take up some of his points. It is also a pleasure to come shortly after the noble Earl, Lord Kinnoull. I congratulate him on the record for not only becoming the chair of the EU Select Committee but making absolutely crucial points on the future and current roles of that committee in the light of the empty chair decision.
In some ways, I find the usual style of the House of Lords and the rather strange title of this debate rather bewildering. I personally wanted to do more than “note” the withdrawal; I would quite like an amendment that says “regret”. I shall probably weep on Halloween, because I have always regretted the Brexit decision. Immediately after the decision, like many other remainers, I was prepared to take a constructive approach to that situation and look at how we could negotiate our way into a new relationship with the EU. By that we then meant an early fulfilment of the withdrawal treaty, a decent transition period when the arrangements could be sorted out—in the meantime, we would be on a level playing field—and we could then start on the very serious prospect of negotiating a proper future free trade agreement with our largest trading partner. What has happened since then has destroyed that vision. We have had the most appalling negotiations, on which I have previously commented. Any first-time shop steward or negotiator in the commercial world would throw their hands up in horror at the way this British Government have negotiated—I mainly blame the British Government, although I have some criticism of the EU as well.
This is the first time that we have been able—at  10 minutes’ notice—to look at what the Government describe as the “first and final offer” on a change in the backstop. The Northern Ireland situation, specifically the backstop, has largely prevented us from concluding the withdrawal agreement. However, it is not at all clear whether the manner in which the Prime Minister is presenting that agreement is likely to win him many friends in Brussels. While we have had some positive and diplomatic responses from Berlin and Brussels, it is by no means delivered. We will have a chance to debate that document tomorrow.
It is worth noting the point that I have made from the beginning, and that is that including Northern Ireland and the border issue in the withdrawal treaty was probably the first and most profound mistake that David Davis made in his period as negotiating Secretary. In the end, Northern Ireland and the Republic of Ireland’s relationship and trade arrangements can only be resolved in the context of a longer-term trade deal. We are still dealing with a very short-term situation. It would appear on first reading of the new document that we are doing so in a way that has been objected to  by a substantial proportion of unionist opinion in the north. In other words, we are keeping Northern Ireland in the EU single market to a large extent and differentiating the treatment of Northern Ireland from the rest of the United Kingdom. I think that was always inevitable, and the resolution of it rests in a long-term trade agreement.
The way the Prime Minister has presented this new solution is designed both to offend the negotiators on the other side of the channel and give cause for concern to many within Northern Ireland itself. The “two borders for four years” proposition is not what anybody in Northern Ireland was looking for. Even if there were a narrow deal and we could move on to the next stage, there are signs in the Government’s attitude that suggest we will be in very serious difficulty. What has been reported, although it does not appear to be in these letters, is that, in addition to the points on Northern Ireland and the backstop, the Government have signalled—in relation to the political declaration, not the withdrawal treaty—that they wish parts of the declaration to be altered so that the commitment to a, broadly speaking, level playing field is omitted. If that is true, it means, as my noble friend Lord Liddle has indicated, that the Government are retreating to a position of not being committed on consumer rights, employment rights, environment protection or a host of other regulations which at present allow us to trade on a level playing field with our trading partners in Europe. In other words, this Government wish to have the ability to cut the rights that exist at the moment and to undercut the European Union in a way that makes a free trade agreement much more difficult.
This is, frankly, what most progressive opinion in Europe has always feared. It is just what will prevent us from reaching a real long-term trade agreement with the EU, and this whole fiasco will drag on and on. We have a debate tomorrow in the name of the noble and right reverend Lord, Lord Harries, on human rights and democracy in future trade agreements. If our first step in that direction is to delete the human and employment rights that we have in our present arrangements with Europe, I will weep on Halloween not only because of Brexit but for the standing of this country in the world.

Lord Campbell of Pittenweem: My Lords, in preparation for this debate, I both watched and listened to the Prime Minister’s speech. I have come to the conclusion that it was not time well spent.
I would like to concentrate on the consequences of Brexit, and in particular the impact on the rule of law. If the rule of law is to be effective, it must be observed both in substance and in process. Yet we continue to have the threat from the Prime Minister, supported by others in his Government, that somehow a way will be found to avoid implementing the obligations contained in the European Union (Withdrawal) (No. 2) Act. Not only does that Act carry the imprimatur of both Houses of Parliament; it has Royal Assent. So, by his very conduct in even suggesting it, the Prime Minister is yet again undermining the position of the monarch.
I was stimulated to deal with this topic by an article written by the noble Lord, Lord Hague, which appeared in a national newspaper this week. He argued that the rule of law was of great importance for the Tory party. That ought to be true, but I am not sure it is what we have been seeing in practice—and it is perhaps most important for the country. After the announcement of the judgment of the Supreme Court, Minister after Minister sought to undermine that judgment—some covertly, others by way of open attack. To attack judges in that way is a contempt of court; in Scotland it used until 1971 to be called “murmuring” a judge. To attack them in that way is to defame them; you are behaving in a defamatory way.
All that culminated in the suggestion that there should be public hearings of confirmation before individuals could ascend to the Supreme Court. I do not shrink from saying that that was a full-frontal attack on judicial independence. How would we apply it? Would we draw on the recent experience of the United States? Would that be our benchmark? Would we say to people, after Senator McCarthy, “Are you now or have you ever been a member of the Conservative Party?”. Exactly what would the questioning amount to?

Lord Framlingham: Does the noble Lord acknowledge that both the Master of the Rolls and the Lord Chief Justice disagreed entirely with the view of the Supreme Court?

Lord Campbell of Pittenweem: I acknowledge that, but the fact of the matter is that, in our system, the Supreme Court is, as its name suggests, supreme. That decision having been taken, it is in my view wholly unacceptable to have the kind of treatment that was made covertly and, in some cases, openly in relation to the judgment issue. The same would have been true if, for example, those of the same cast of mind as Gina Miller had attacked the decision made by the divisional court. Attacking the independence of judges matters not for what they have decided; what matters is their independence, and that must be emphasised and encouraged at all stages.
Will the Minister name a legal jurisdiction which is more independent, impartial or incorruptible than the two legal jurisdictions of the United Kingdom? Politicisation will be the death knell of all three of these vital qualities. The fact is that, if the Supreme Court had found in favour of the Government, it would have been praised for its Periclean wisdom. Medals might even have been struck.

Lord Heseltine: Of the 11 members of the Supreme Court, nine were appointed under a Conservative Prime Minister. Might that not have been used as an argument, if they had found for the Government, indicating corruption?

Lord Campbell of Pittenweem: There are plenty of illustrations of how those who have had a political affiliation, when elevated to the Bench, are able to put that beyond them.
The Prime Minister did not dare to publish his proposals before his party conference; he did not dare to tell his conference what the proposals were; and he declined to tell Parliament until after their publication. I think that tells us quite enough about the Prime Minister and his willingness to adopt attitudes of openness and accountability.
I hope that the Minister will respond to the last matter I will raise. Yesterday, it was said on behalf of the Government that the proposals did not involve infrastructure. How can customs checks be carried out in the middle of a field? Who will carry out that check? What, if any, infrastructure will there be, even if it is only a camera at the end of a pole? Would not these things be of an attractive nature to the dissidents, albeit in a minority, whom we still find in Northern Ireland? We are too close in many respects to the consequences of the Troubles not to accept that to introduce anything that seems in any way to prejudice the Belfast agreement could cause unrest and even, beyond that, death and damage.

Viscount Waverley: My Lords, we cannot be dismissive of 45 years’ shared partnership. There is much to reflect on and respect. We need the EU 27 by our side. It has been a long haul and our country deserves a long bout of optimism. We are apparently in the Brexit home straight. It could all have been so different. I believe that the EU journey should have been managed differently by the UK from day one. The lack of appropriate messaging and misplaced actions from the start have created the situation in which we find ourselves.
The UK has devoted too much of its thinking to single-focused economic priorities, rather than balancing them with the plethora of the important, unrelated advantages of EU membership. There is an adage in life: “You get out what you put in”. We have not been an easy bedfellow, but I accept that respect, as well as genuine sadness, is felt in the high echelons of the Commission and around the Union regarding our departure.
Everything that could have been said has been said in one form or another since the triggering of Article 50, yet a mountain of issues remain and are being taken to the wire, both in negotiations with the Commission and internally in the UK. Only high politics will sort this out, and that is not my bag. However, I ask the Minister: how can his Government be sure of their numbers on large-scale investments announced at the current Conservative Party conference yet feel able to set out a legislative programme in the Queen’s Speech on 14 October when no one, including the Government, knows the lie of the land on 31 October, Brexit day?
Frankly, I never thought Brexit would happen as I felt that our systems were too entwined, so in that regard I have some sympathy with the no-nonsense approach. It will, however, be a huge relief when this tortuous period is brought to an appropriate non-cata- clysmic closure. I understand that proposals regarding the political declaration are also being put forward today.
Whereas we should now have been at the stage of crossing the “t”s and dotting the “i”s in the negotiations, we are now driven to populist rhetoric saying that we are fed up and should just get the job done with scant regard to the consequences or, on the other hand, pragmatists counselling delay to get this right. History will judge whether all this will have been a triumph for democracy, but “unedifying” encapsulates this endgame process.
Last week I participated in the Greater Eurasian parliamentary speakers conference, made up of speakers and parliamentarians from 41 countries, which took place in Kazakhstan with the theme of trust, partnership and dialogue. Reaction to the Brexit process was one of bemusement, bewilderment and incredulity. To top it off, possibly in the manner of things to come, when I re-entered the European Union at Frankfurt the German immigration officer asked what the purpose was of my entering the EU. I trust your Lordships will have found favour with my response.
It will take decades for the true long-term effects of departure from the EU to be felt. The saving grace is that it is the gift of the Government of the day, year on year, to tailor policy to suit the circumstances of the day. We can take solace that it is the catering to those circumstances that hopefully will come to the fore. I am therefore reconciled to “Que sera, sera” and resigned to reality. What we must all do now is rally around the flag, react to the consequences and work to create opportunities in the best interests of the kingdom. I will do my bit in any small way I am able.
However, I believe that we have an opportunity to move on from ways of old. We have a chance not only to modernise but to instil a rhythm of inclusiveness and moderation in a newly-branded UK. The winning ticket will be to bind our country together with ethnic, cultural and religious tolerance, and with this harmony will come all manner of success as we chart a future globally, humble but effective in our approach. To that end, I think Brexit could, perversely, be a catalyst to preserve the sanctity of the United Kingdom. I hope not to be proven wide of the mark when I suggest that our Scottish cousins will reflect on the political and economic complexities of separation. We are all in this together and we need each other.
The Minister commented on the question of citizens. I would feel uncomfortable if I did not conclude on a note close to home that could affect Portuguese living in the UK and British citizens in Portugal. Many EU countries, and in my case Portugal, have made provision for UK citizens properly registered to remain in the event of a no-deal circumstance. The existence of such legislation is certainly good news for Britons living in Portugal, and the Portuguese Government and parliament should be given credit and thanked for that law. However, a big “but” emerges. While Portuguese law 27-A/2019 is described in the official bulletin as approving contingency measures to be applied in the event of a no-deal exit, article 19 addresses the issue of reciprocity. The law refers to “equivalent treatment”. Is the Minister satisfied, and will he confirm today, that all the elements of the EU citizens’ rights package have been fully incorporated into a robust government policy with the necessary legislation in place, including the settlement scheme?  Are all the immigration rules and other secondary instruments to this end legally in place? The Government of Portugal’s António Costa and Governments around the continent would welcome an unequivocal assurance from the United Kingdom Government given concern about the UK protecting the rights of EU citizens living here.
Will the Minister accept that anxiety prevails? To put this situation into context, extraordinary though it is, today there are 154 passenger flights leaving and departing between the UK and Portugal. There will be an almighty fuss if HMG do not grapple with this situation. Will the Minister state exactly what the situation is? What he has to say will be reflected on carefully by EU member states. If he feels unable to do that, will he confirm his intention to write in a timely manner, addressing the issues that I have raised in detail, and to place a copy of his response in the Library, ideally before the Queen’s Speech?

Lord Lilley: My Lords, it is a pleasure to follow the noble Viscount, Lord Waverley, with whom I share an interest in central Asia. Like him, I have always found, when in Kazakhstan and neighbouring countries, that they have great sympathy with our decision to leave the European Union, having themselves left the Soviet Union.
I have always argued that the best outcome of our negotiations would be a free trade agreement negotiated before we leave; but the most likely outcome is that we leave without a withdrawal agreement—although hopefully we will succeed in negotiating a free trade deal once we have left. Unfortunately, although the most likely outcome is leaving without a withdrawal agreement, the whole prospect has been demonised to the point where no serious thought or consideration is given to it. If I may, I will deal with some of the misunderstandings that relate to it.
First, there is no likelihood of us leaving with no deal, for the simple reason that we have already agreed lots of mini-deals. We used to be warned that the planes would not fly. The EU then legislated that our planes would be able to fly over, land in and return from EU airports, if we reciprocate. We reciprocated; deal done. Then we were told that our hauliers would not have enough licences to operate. The EU created extra licences, as long as we reciprocated. Deal done. Then we were told, “That’s only going to apply up until the end of the year”. Quite true—because it is going to be followed by a better arrangement, because the EU, in conjunction with us, has agreed that henceforth ECMT licences will be available for all 43 countries covered by that arrangement, not just for the 28 of the European Union.
The EU also supported our renewed membership of the Common Transit Convention, which means that our hauliers and traders will not have to pay duty or complete customs declarations until they reach their destination. Another deal done. We were told that we would not be able to export Airbus wings, because their safety certificates would not be recognised. The EU realised that the Airbus could not fly without wings, so it agreed to continue recognition of those  and other aerospace component safety certificates. We were told that there would be no visa arrangements between the EU and us—but, again, we have agreed reciprocally that there will be 90 days of visa-free travel with all members of the European Union.
So there will be a series of mini-deals. However, with those scares no longer available to frighten people, the language moved on to abstract adjectives such as “catastrophic”, “disastrous” and so on. Most of the remaining specific fears, such as that there will be shortages of fresh food and medicines, or that just-in-time factories will have to close down, are based on the assumption that there will be disruption on the Dover-Calais crossing because, for the first time, traders will have to fill in customs declarations and pay tariffs.
These are just a few facts. First, customs declarations will be required whether we have a free trade agreement or not. Secondly, they are not checked at the border but by computer in Salford. They are made electronically. Likewise, tariffs are not paid and collected at the port. As the head of HMRC said, they are paid computer to computer.
Physical checks of cargos are carried out only if the algorithm in the computer at Salford shows that there is something suspicious about them, or if there is other intelligence information. Fewer than 1% of consignments are subject to physical checks, and usually these are carried out away from the port, at the destination or point of origin. Almost all checks relate to suspected smuggling of tobacco, other excisable goods, drugs, arms or illegal immigrants. HMRC does not expect any more information leading to suspicion of such smuggling and therefore does not expect to have to carry any more checks in future than it does at present. However, it has said that if for any reason there are incipient delays on traffic going through Dover, it will prioritise flow over compliance. That does not mean that it will neglect compliance, but checks will be carried out away from the port, at the company’s HQ or at the destination of the goods.
The port of Dover has said that it is 100% ready for Brexit. So there will not be any disruption in the flow coming through Dover. Fears all relate to what will happen if there are any delays at Calais. Calais has said that it is better prepared than Dover. It now has more than a dozen lanes for handling lorries, where previously it had only two. It has a smart border and two inspection posts away from the border to ensure that there is no congestion when checking animals and animal products. So it is very unlikely that there will be any delays at Calais, either.
But if there were, what would happen? We know what would happen: we would have to activate Operation Stack. We have had to do that on more than 11 days a year on average for the last 20 years. In 2015, it was activated for 23 consecutive days; 7,000 lorries were stacked up on the M20 and had to wait for 35 hours. I simply ask Members of this House who threaten us with dire consequences if anything remotely like that were to happen again: do they recall anyone dying from a shortage of medicines? Do they recall any shortages of fresh food? There was certainly disruption of supplies of fresh food and of just-in-time production, but it did not lead to the closure of any factories. So let  us not have exaggeration but stick to the facts. Then we will be ready to face up to leaving with no withdrawal agreement and negotiating a free trade arrangement.

Lord Adonis: My Lords, I will simply say of the speech from the noble Lord, Lord Lilley, that his likening of the European Union to the Soviet Union will be hugely resented by all those countries of central and eastern Europe that were colonies of the Soviet Union but are free and democratic members of the European Union.
From the outset, Ireland has been the Achilles heel of Brexit and I believe it will ultimately defeat it. That is not because the impact of Brexit on Ireland is different from its impact on the whole of the United Kingdom. The three key impacts or problems of Brexit—that it will impede and imperil free trade, the free movement of people and close relations between European neighbours—apply to the United Kingdom as a whole, in our relations with the European Union as a whole. However, they are magnified in the case of Northern Ireland because it has a greater proximity to the Republic of Ireland than we have to the generality of the European Union and because they threaten a straightforward breach of the Good Friday agreement. That agreement does not regard it as acceptable that there should be any move towards a harder border in Ireland, but that is of course the policy of Brexit in respect of our relations with the European Union as a whole. That is why Theresa May agreed the backstop. It is why the Minister has many times justified the backstop to this House, in the way that he descried it earlier.
Since the Government changed and Boris Johnson became Prime Minister, the Brexit policy has descended into doublespeak. What now happens all the time is that Ministers say something is sensible and workable when it is clearly nonsense and unworkable, and that something is true when it is manifestly false. We have seen that with Ireland in just the last 48 hours. We have been told that there will be different customs regimes and regulatory rules over time—the question is what time—that will not require any customs checks on or near the border.
I have only had the chance to look briefly at the documents to which the Minister referred earlier, which were published today, although they will be forensically examined over the next few days and weeks. On my immediate reading, it looks as though these propositions will disintegrate. In the Prime Minister’s letter to the President of the European Commission, he says one key aspect of the proposals is that they provide,
“for the potential creation of an all-Ireland regulatory zone on the island of Ireland, covering all goods including agrifood”.
While this regime is in place,
“goods regulations in Northern Ireland are the same as those in the rest of the EU”.
It is worth stressing those words: they are,
“the same as those in the rest of the EU”.
However, a following paragraph says:
“Under these arrangements Northern Ireland will be fully part of the UK customs territory, not the EU Customs Union … It has always been a fundamental point for this Government that the UK will leave the EU customs union at the end of the transition period”.
Those statements cannot both be true. If the island of Ireland is going to be an all-Ireland regulatory zone, which is the same as that of the rest of the EU—i.e. the customs union and the single market—it cannot also be true that Northern Ireland will be fully part of the UK customs territory. The Minister’s explanations of these matters are so clear to the House, so I look forward to his explanation at the end of the debate.
This doublespeak suffuses all the Government’s statements on Brexit. Like the noble Lord, Lord Campbell, I have read the Prime Minister’s speech in Manchester, and we see it in that speech too. The Prime Minister tells us that “the alternative” to these proposals just published “is no deal”. That is not correct. The alternative to these proposals is not no deal. Parliament has said that, this House has agreed that, and her Majesty has given Royal Assent to a Bill that says that the alternative is not no deal. The alternative is that the Government will be required to apply for an extension of our membership of the European Union. That is the European Union (Withdrawal) (No. 2) Act, so that was a straightforward untruth. What then happens will be for Parliament to decide. Parliament is the sovereign body in the United Kingdom. If it decides there will be a referendum or a general election, it will happen in the context of the United Kingdom not leaving the European Union at the end of October.
The Prime Minister also said in his speech that, if we stay in the EU at the end of October, we will pay,
“a billion pounds a month for the privilege, followed by years of uncertainty for business and everyone else”.
The key point that Members of your Lordships’ House will be well aware of—because of the hour after hour that we have spent debating the EU (Withdrawal) Act and the agreement reached last year—is that, if we leave the European Union at the end of October, we will pay £39 billion as part of the exit deal. As far as I am aware, but the Minister may correct me at the end of the debate, the Prime Minister is not proposing to unpick that. One certainty about us leaving with the withdrawal agreement and whatever changes are agreed between now and then is that we will have years of uncertainty for business and everyone else, because there will be no long-term relationship between the European Union and us. We are faced with constant doublespeak, which misleads the British people and debases the quality of public debate.
I am afraid that this doublespeak goes to the heart of the character of the Prime Minister. He believes, he tells us, in having customs checks and simultaneously in having no customs checks. He says he will comply with the law, but he has no intention of doing what it says. He uses vile, crass, inflammatory language, while claiming to be a model of restraint. He is unfit to hold office and the sooner he goes, the better.

Lord McNally: My Lords, the three years since the 2016 referendum have stress-tested every aspect of our parliamentary democracy. At times we seem to have been living out Yeats’s words in his poem “The Second Coming”:
“The best lack all conviction, while the worst
Are full of passionate intensity”.
I was in the room at Transport House in 1971 when Anthony Wedgwood Benn proposed that the Labour Party, when returned to office, should hold a referendum on our membership of the European Common Market. He could not get a seconder for that proposal; referendums were held by tinpot dictators and banana republics, not by mature parliamentary democracies. My old mentor, the late Lord Callaghan—no relation—remarked sagely at the time, “That’s one lifeboat we may all have to climb in one day”. So we did in the 1975 referendum, which was an exercise undertaken to hold a divided Labour Party together. The 2016 referendum was held for exactly the same reason, this time to paper over the yawning divisions in the Conservative Party over Europe.
All too often, in all our parties, expediency has topped principle in presenting the case for Europe. In the end, we have been hoist by our own petard. Successive British Governments have used the same tactics the SNP has used in Scotland: it takes credit for everything that goes right and blames Westminster for everything that goes wrong. For 40 years, successive British Governments have taken the credit for the influence and prosperity that membership of the EU has brought, while blaming the Brussels bureaucrats for any tough decisions that had to be implemented. It was perhaps not surprising that the case for Europe, which has been undersold for 40 years, fell victim to a Brexit campaign of such mendacity and falsehood.
Some of the damage we are now experiencing could perhaps have been avoided if we had not rushed to engage Article 50. In so doing, we have arrived at a point where we are in very real danger of crashing out of the EU without a deal—something which was never put to the British people in 2016. It is absurd to pretend that the 2016 decision was as informed about the truth and consequences of us leaving Europe then as we are now by the realities that have been laid bare over the past three years.
In the Times on Saturday, Philip Hammond—only recently Chancellor of the Exchequer—wrote:
“The radicals advising Boris do not want a deal. Like the Marxists on the Labour left, they see the shock of a disruptive no-deal Brexit as a chance to re-order our economy and society”.
He points out very clearly that the Prime Minister is backed in this strategy by,
“speculators who have bet billions on a hard Brexit—and there is only one outcome that works for them: a crash-out no-deal Brexit that sends the currency tumbling and inflation soaring”.
We are told by the political analysts that it was the elderly and the left-behinds who provided the Brexiteers with their majority in 2016. In my youth I read a book called The Ragged-Trousered Philanthropists, which tells of how those who have the least are complicit in their own exploitation. If we crash out without a deal it will be the elderly and the left-behinds who bear the brunt of the consequences that follow, while speculators make a killing in the chaos that follows.
This is not the Eton wall game: get over the line any way you can, dust yourself down, all shake hands and move on. This is about the future of our country for the rest of this century. Those who have to live with the consequences of that decision—the young—have the right to vote again on the matter, and those who  will not live with those consequences should at least be given the opportunity to think again about whether this is the future they wish to bequeath their children and grandchildren.
We should be able to make those decisions protected, as far as possible, from the black arts of modern electioneering. In the last month, Mr Johnson and  Mr Cummings have been working to the Trump-Bannon playbook. Only the intervention of Parliament and the Supreme Court saved us from an illegal Prorogation, a bounce-out of the EU and a general election fought on a phony people-versus-Parliament basis. Leaving the EU without a deal or via some loophole hinted at by the noble Lord, Lord Callanan, which subverts the will of Parliament, will leave an open wound in our politics that will take a generation to heal. There is still time for the one-nation Tories, the liberals and the social democrats to speak for the liberal and tolerant society that is at ease with itself and its neighbours. But time is short and the time for action is now.
Fifty-odd years ago, I visited Strasbourg for the first time as a junior official of the Labour Party. I remember how we were greeted then: not as people who had won the war, but as a country admired for its good governance and the rule of law. There was a desire to see this country play a leading role at the heart of Europe. My son—now about the same age as I was then—works in the space industry in Germany as part of a multinational European team. I asked him what the reaction of his colleagues was. He said, “Dad, it’s a kind of bemused sadness”. From how we were met in the 1960s to that bemused sadness now is something that we should all ponder.

Lord Anderson of Ipswich: My Lords, it is a little hard to take note of something—the UK’s withdrawal from the European Union—that may or may not happen. It is harder still to predict how it will turn out, a task that I happily leave to the large number of your Lordships whose political antennae are more finely tuned than mine. However, there is one aspect of the withdrawal process of which I take note and express concern: the strain that it is placing on the system by which we are governed.
Our constitutional settlement is based on the accountability of the Executive to Parliament, and on the rule of law. These are foundational principles, to which our utter fidelity should not be in doubt, but successive Governments have been tempted to stray from both. Understandably frustrated in their attempts to implement the referendum result, they have identified an alternative pole of attraction: the so-called will of the people, as expressed, however tentatively and enigmatically, in that vote in 2016.
The previous Government may not have always welcomed their accountability to Parliament or done all they could to defend the rule of law, notably against the description of senior judges as “enemies of the people”. However, as the compelling drama series Brexit enters its fourth season, it is the current Government who have jumped the shark. The principle of executive accountability to Parliament was not only threatened but, as the Supreme Court unanimously found, breached  when Parliament was prorogued without sufficient reason. The Government have appeared at best indifferent to the rule of law in their repeated assertions that we will leave on 31 October with or without a deal. The Act of Parliament that takes the fulfilment of that promise out of the Government’s hands is barely acknowledged, save for the purpose of designating it, quite inaccurately, as the surrender Act.
The legal editor of the Times this morning reports a Cabinet Minister briefing that,
“Mr Johnson would refuse to sign a letter requesting an extension even if the Supreme Court ordered him to”.
Whether or not such brazen words are followed through, the rather significant principle that we must all obey the law is corroded merely by their being spoken.
These are destructive themes indeed: people versus Parliament; people versus the courts; people versus the laws; people versus Brussels, Ireland, foreign states or foreign powers; Brexit as a World War II re-enactment. Then, for good measure, there is more: people versus the BBC; people versus the universities; people versus the elites—other elites, that is, never those who are whipping up the outrage. Those themes are destructive, not least, because these populist calls are not the preserve of any single party or grouping, but might in future prove just as attractive to Governments of a different, and even more dangerous, colour. The neglect of fundamentals, and the coarsening of our national dialogue, are genies more easily released than put back in the bottle.
Thank goodness for our Supreme Court, which has decisively and dispassionately applied the relevant principles, conducting itself before the eyes of a watching world without fear or favour, affection or ill will. Relied upon in its judgments in both Miller cases was the Case of Proclamations 1610, in which Sir Edward Coke set limits on the prerogative power of the monarch. At one meeting between the two men the King was famously described as,
“looking and speaking fiercely with bended fist, offering to strike”,
him, whereupon Coke fell flat on all fours and beseeched the King to pardon his zeal.
The pressures on modern judges may not be quite in that league but plans to tame the judges need to be strongly resisted. The transparency of the Supreme Court is already exemplary: 4.4 million people are said to have accessed its live stream on the first morning of the Miller-Cherry case—hoping no doubt to catch the noble Lord, Lord Pannick. The fine work of the Judicial Appointments Commission, with its substantial lay element, deserves to be better known. But the judiciary cannot and should not be made more directly accountable to “the people”, or even to their representatives in Parliament. The true independence of our judges, bred into them from their early years in the Inns of Court and admired around the globe, is as vital to our constitutional integrity as it is to our standing in the commercial world.
Democracy, properly understood, is about so much more than winner-takes-all populism. It is: inclusive, tolerant, pluralistic; founded on respect for law and institutions; a mechanism for not only quantifying but reconciling our differences. Whatever else we may lose  from the fiasco that is Brexit, let us hold fast to that and make it the basis on which we build for ourselves a better future.

Lord Howarth of Newport: My Lords, let us remind ourselves that the case for leaving the European Union is to reclaim the legislative sovereignty that we lent to the European Communities in 1972—and that is a prize of great value. The delegation of so much policy and legislative responsibility to the democratically defective institutions of the European Union has been, I believe, a powerful factor in the growing disaffection with parliamentary democracy that we have witnessed in our country. To take back these responsibilities gives us an opportunity to renew our democracy.
Our country is indeed “full of passionate intensity”; that is not surprising, because Brexit is a struggle for the soul of the nation and the future of our democracy. When people were asked in 2016 to vote to leave or to remain, they were in effect asked, “Do you wish to preserve the status quo?”. That question prompted an outpouring of long pent-up anger against elites and a howl from those who had been failed by the neoliberal orthodoxy practised by all parties in government. Many leavers now take the view that their Parliament is intent on cheating them, while many remainers are fearful of the mob. This is a dangerous state of affairs and we urgently need an access of moderation and reason.
To resume self-government in the sense that Brexit would permit is not to consign our nation to Faragism, to reaction, to racism and to xenophobia. It will be open to us to choose to be a liberal and internationalist society, and that is what I believe people will want to choose. For the centre-left, so unconfident about a post-Brexit future, the challenge is to put forward a vision of a sustainable economy, social justice and policies for climate change, and to win elections.
It is hard to see how compromise between the leave and remain positions can be achieved. Leavers see the Brexit issue in terms of freedom and democracy; remainers choose to frame Brexit in terms of the economy and standards of living. These two sets of considerations do not engage. The withdrawal deal, which I believe was an honourable attempt to find a compromise, was rejected vehemently by both sides of the argument on three occasions.
Is the present condition of our politics therefore a massive failure? There is certainly immense frustration in the country and a paralysis of decision-taking. The parties appear to have descended into chaos. There is too much excessive language, whether of surrender or of catastrophe, in our political discourse. Abuse and threats abound. It was very wrong for the Prime Minister, in a system of parliamentary government, to rouse the people against Parliament. He should desist from the use of populist language and seek to speak for the country as a whole. Among the many divisions in politics is that between those politicians who seek to appeal to,
“the better angels of our nature”,
and those who conjure demons.
On the other hand, it could be said that what has been happening in our politics is rather admirable. There is a mighty contest between politicians who have passionately held but conflicting views of what will be for the good of the country. When the Government have been unable to advance, Parliament has chosen to take the initiative; the Speaker has upheld the right of the House of Commons to do so; politicians have worked across party boundaries and some have been willing to sacrifice their careers for their principles; and the Supreme Court has proved an effective check on arbitrary government—the Prime Minister should never have made that stupid and improper attempt to prorogue Parliament for five weeks.
Whichever view noble Lords may take, we now need as quickly as possible a resolution to the essential Brexit issue of whether we leave or remain, and we need a return to mutual respect and reconciliation. But I fear that neither a referendum nor a general election will produce those outcomes.
Meanwhile, as we look at the time horizon between now and 31 October, it is I suppose possible, although it seems unlikely, that the Prime Minister will negotiate a deal with the European Union. If he does, that deal will presumably be the withdrawal deal with the backstop tweaked. But for many leavers that will be viewed as Brexit in name only.
I will quote Professor David Collins, professor of international economic law at City University:
“We must keep in mind that there are many features of the Withdrawal Agreement which are just as bad as the Backstop, but which have received far less attention, notably from our Prime Minister. The Withdrawal Agreement would maintain the supremacy of EU law over the UK, including new laws created by the EU over which the UK would have no voice. This means that UK courts would be required to strike down Acts of Parliament if they are determined to be inconsistent with EU law. Worse, the jurisdiction of the European Court of Justice would be retained, either directly or through a dispute settlement system modelled on the one the EU has with the Ukraine through which a notionally neutral tribunal would be bound on issues of EU law by decisions of the ECJ. Since the UK would have no judge on the ECJ, it would effectively be under the jurisdiction of a foreign court”.
Have we come this far for that? What kind of sovereignty is that? There will be anger if that is the nature of the deal, and it is very questionable whether the House of Commons would vote for it.
Alternatively, we may leave with “no deal”—I use that as a term of art; the noble Lord, Lord Lilley, explained that there are many deals that mitigate the notion of an absolute no deal—should one of the member states of the European Union veto an extension. I believe that that would not be a catastrophe. We would of course have been much better prepared for such a contingency had the previous Chancellor, Mr Hammond, not forbade further public expenditure on preparations for no deal at a crucial phase—but the present Chancellor, Mr Javid, is seeking to make up for lost time. Yes, we would go through choppy waters, but we would go through no hurricane. We could come through, as we have come through many periods of economic disruption and difficulty before. Then, as  we worked towards a free trade agreement, we would  be doing so with our heads held high as a self- governing nation.

Lord Tugendhat: My Lords, there is one matter on which I am able to agree with the Prime Minister: that the Government should get on with Brexit. As much as I regret the result of the referendum, I think it has to be honoured, as indeed do the pledges in the major parties’ manifestos in the 2017 election. It grieves me to make this point, but I also fear that, after all that has happened, it is no longer practical to think in terms of a return to the status quo ante and Britain simply resuming its position in the EU as if nothing had happened.
Like the noble Lord, Lord Butler of Brockwell, I wish the Government well in their efforts to secure a deal; I hope they succeed and I look forward to supporting it if they do. This brings me to the first point on which I disagree with the Prime Minister: the repeated assertions by him and his allies that it is somehow because of remainer plots and prevarications that we are still in the EU. The noble and learned Lord, Lord Wallace of Tankerness, referred to this. The reason why we are still in the EU is, above all, that the Prime Minister—before he became Prime Minister—and other leavers in the Conservative Party, among our so-called allies in the Democratic Unionist Party and in the Labour Party would not support Mrs May’s efforts to secure a deal. Far more people who voted remain in the referendum supported her than opposed her, and it was the so-called leavers who created the difficulties.
My next point of disagreement with the Prime Minister concerns his insistence on a departure date regardless of terms. To announce in advance that one will walk away from a negotiation on a given date means announcing in advance when one will be giving up the struggle. I have to say that if ever there were an act of surrender, it is that. Instead of leaving in a huff, like a child not getting its way in a game, the Government owe it to the nation to stay at the table until they get the best deal they can. That is what Mrs Thatcher did during the epic struggle over the British budget negotiation, which I remember all too well on a personal basis. That is what Mrs Thatcher did and what the Government should do now. This point is particularly apposite in the light of all the documents concerning the Government’s plans that were issued just before this debate. Obviously, like everybody else, I have only had an opportunity to glance at them, but a glance is quite sufficient to show that they contain a number of new elements, to put it mildly, and move a number of goalposts. To expect our negotiating partners to get their minds around all that and reach conclusions in the time allotted is really asking too much.
As the noble Lord, Lord Butler of Brockwell, pointed out, there is all the difference in the world between a deal and no deal, between an orderly and a disorderly departure. Leaving is a massive step: it changes the whole direction of Britain’s trade and external relations after a period of over 40 years. It is vital that such a manoeuvre be conducted with the minimum disruption possible. As older Members of this House will recall, when we joined the European Community, as it then was, we had a transition period in order to adjust to the disciplines, the rules and so forth we were taking on.  We had a transition period going in and it would be greatly in our interest to have a transition period going out. I say that not just because short-term disruption will cause pain to the British people—whether it is more pain or, as my noble friend Lord Lilley said it will be, less pain—but because it is certainly going to be disadvantageous. I have not heard anybody argue that the consequences of a no-deal departure would actually be beneficial to the economy.
So, there is that short-term reason but also, the manner in which we leave will create the platform on which we will be building for the future. If we are, as far as possible, to minimise the disadvantages of leaving the European Union and maximise the opportunities it may offer, we need to go about the process in a deliberate and orderly fashion. Growing apart from the European Union should be a managed process, like separating conjoined twins, not some exercise carried out in a rush in order to meet an arbitrary timetable. One reason we are in the mess we are is that those who campaigned to leave the European Union had no idea what means were required to do so. They wanted an end but they did not understand, or did not think about, the means. If we were to crash out now, whether it will be as easy as my noble friend Lord Lilley says or as difficult as others say, that would be the worst possible basis for building for the future, for minimising the disadvantages and for taking advantage of the opportunities.

Lord Marks of Henley-on-Thames: My Lords, we have repeatedly heard this week the Conservative conference slogan: “Get Brexit Done”, followed by, “then we can get on with our domestic priorities”. That is an entirely false prospectus. Deal or no deal, if we leave the EU, our leaving on 31 October or on any other date is only the first stage in the process. No serious commentator doubts that, if we leave, we will be preoccupied by our future relations with the EU for at least a decade.
What is more, the Government’s approach to our domestic priorities involves spending commitments as unbelievable as the £350 million a week on the leave bus. Such commitments depend on continuing economic success, when all economists agree that leaving the EU on any terms, let alone with no deal, would carry major economic cost. Notwithstanding that, Mr Johnson today advanced a tax-cutting agenda. Despite all those contradictions, the Government assert that “Get Brexit Done” is the people’s demand, but that assertion, in its unqualified terms, is unsupported by any evidence.
Certainly, the electorate is sick of the hostility, the political paralysis, the corrosion of our public life and the failure of the Government to do anything but Brexit, but “Get Brexit Done” will not address that. No, the real majority is for the blunt proposition: “Make it stop!”. The simple truth is that the only way to make it stop is to abandon Brexit altogether, whether by a remain vote in a referendum or by revoking our Article 50 notice.
Yes, there would be national embarrassment, but we would at least be turning back from disaster before we suffered the consequences of leaving. Yes, there  would be many disappointed people who voted leave conscientiously, but many of them now recognise the impossibility of leaving without massive disadvantage. Many also recognise how international circumstances have changed: the dangers of an expansionist China, an aggressive Russia, a dangerous Iran, a still explosive Middle East and the mercurial unpredictability of President Trump’s United States.
In addition, our citizens increasingly see combating climate change as a priority and appreciate the EU’s massive contribution to that effort. Young people, more even than in 2016, value their freedom to study and work throughout the EU. More people now see the value of European co-operation in research and innovation, security and policing, law enforcement and co-operation in civil law. Yet, if these new proposals on the Irish border are rejected—as well they may be—we are threatened with an immediate end to all those benefits in a no-deal Brexit, with all its catastrophic consequences, graphically set out in the Yellowhammer documents, because our apparent willingness to accept no deal is said to increase the chance of securing a deal.
We now finally have the Government’s outline proposals to replace the backstop. The conduct of Ireland and the EU to date suggests that they are not so easily cowed and are too sophisticated to be threatened into accepting them against their interest. So was Parliament in passing the Benn Act. The noble  and learned Lord, Lord Goldsmith, my noble friend Lord Campbell and others have questioned how the Government may respond.
Yesterday, we celebrated the opening of the legal year with international leaders of the legal profession, who have long admired Britain as a standard-bearer for the rule of law. The rule of law requires more than obedience to our courts, although the Supreme Court has fully demonstrated its quality and independence in striking down the purported Prorogation. As the noble Lord, Lord Anderson, pointed out, the rule of law also requires that the Government conscientiously strive to act according to law. The Benn Act is now the law. The Government must seek to comply with it, not merely because they fail to find a loophole but because our system depends on respect for the rule of law and the sovereignty of Parliament. If the Benn Act’s conditions apply, will the Government conscientiously strive to agree an extension with the EU? Then there can be an election or a binding referendum.
I add that it is in no way undemocratic to allow the people to revisit a generalised decision made in the spring of 2016 and express their view again in the light of the present circumstances and new knowledge at the end of 2019 or the beginning of 2020. Let us have an end to this loose talk of Parliament against the people. At the heart of our democracy is the principle that Parliament represents the people. It is a principle worth defending.

Lord Birt: My Lords, we are mired, the road to our present misfortune littered with miscalculation and error. A referendum called to resolve a party division has torn that party apart. Remain was the  anticipated answer, but after a clear-sighted, if misleading, campaign on the one hand and a somewhat clumsy and unconvincing one on the other, a country unsettled by the 2008 financial crisis, flat incomes, public sector austerity—and, as we know from surveys, a rapid rise in immigration—gave an unexpected answer. In advance of the negotiation with the EU that followed, red lines were drawn around our future trading relationship with by far our biggest trading partner without any serious national consideration of the alternatives. Article 50 was triggered without any prior agreement with the EU on the framework for negotiation: a disastrous decision which further weakened our already poor negotiating hand.
All that could then be agreed with the EU were the divorce terms: the critical issues about our future trading and other relationships were deferred. Thus cornered, we have arrived in the bizarre position of having to agree a backstop arrangement covering the most sensitive land border in Europe in the event that future trade negotiations may fail. Northern Ireland is where the Brexit rubber truly hits the road.
The Brexit process intensified division when every attempt, however difficult, should have been made to promote reconciliation. It was not. As a result, we are more divided now as a nation that we have been for hundreds of years. In the nearly seven years since David Cameron gave his Bloomberg speech, we have been transfixed by this single issue and have given scant attention to all the other matters that press  on us.
As a nation, we need rapidly to recover our composure and speedily to resolve the way forward on Brexit. We must now, I fear, enter the realm of least worst options. At all costs, we must avoid a car crash Brexit. As Sir Ivan Rogers memorably declared, there is no such thing as a no-deal Brexit—the noble Lord, Lord Marks, made essentially the same point a moment ago. For, the day after we leave, we would still have to negotiate a trade deal with our neighbours, the biggest economic bloc in the world, in circumstances where our hand would be weaker still and where feelings would be even more bruised than they are now. Our nightmare could well continue for another seven years.
So, like it or not, the least worst option is likely to be Theresa May’s deal reinstated, with perhaps a few face-saving tweaks—as the noble Lord, Lord Howarth, said. The non-binding political declaration is a perfectly acceptable basis for future negotiation, and we may have to swallow the risk of the backstop or some variation of it—however unpalatable—for fear of something worse if today’s alternative offered by the Prime Minister is not accepted.
We should know within weeks or even days if this Government can produce a deal that a majority in Parliament can stand behind and that the EU will accept. But if this does not happen, a general election cannot be the response. It would waste yet more time and the outcome is profoundly uncertain, as Sir John Curtice opines and as Theresa May, from her own experience, can surely testify. Nor is impeaching the  Prime Minister the way forward—that would be a massive distraction and would not begin to answer the exam question before us.
We are in 1939. If a deal is not forthcoming in the short term, parliamentarians must forgo manoeuvring in their party interest—this happens in all parties—and act only in the national interest. In the absence of a deal, after a vote of confidence a temporary national Government should be formed, made up of members from all the main political parties, with independent leadership and constituted for only one set of purposes: to negotiate a Brexit deal, hold a confirmatory referendum and call an election immediately the result is known.
I hope there will be a confirmatory referendum for, whatever the answer, it will be emphatic and will put an end to our misery one way or another. I see nothing at all wrong with the notion of a second referendum. In every other walk of life—on a company board, for instance—an initial decision in principle would return for ratification once due diligence is complete and the terms of the final deal are set. It is the natural process for any important and complex matter.
There is one bright light shining in the murk. In 1688, the Bill of Rights asserted the supremacy of Parliament over the tyranny of kings. More than 300 years later, a combination of a bold and courageous Speaker and the calm lucidity of our Supreme Court has once again established the supremacy of Parliament, this time over an overreaching and divisive group within a single party. The Speaker and the Supreme Court have together made history, and they may well prove our salvation.

Lord Livermore: My Lords, in the House of Commons one week ago, the Prime Minister delivered a Statement demeaning in its tone and inflammatory in its language. Deliberately provocative, it was clearly an exercise in distraction, designed specifically to divert attention from the Supreme Court’s ruling 24 hours earlier that the suspension of Parliament was unlawful. But while the Prime Minister’s Statement was reckless, it was also revealing, providing us with the clearest insight yet into the no-deal playbook, the rhetorical strategy designed to achieve the most extreme form of Brexit.
The first and most pernicious part of this strategy is to question the patriotism of their opponents, duly articulated by the Prime Minister in the phrase “surrender Act”. Although undoubtedly offensive, this phrase also betrays an extraordinarily warped world-view. Like the Japanese soldier emerging from the jungle, unaware that the war had ended some 60 years earlier, members of this Government deploy confrontational language, unable to comprehend just how much the world has changed or where Britain’s national interest now lies. They fail to realise that we are not in a war; that we will not succeed by standing alone, isolated; or that cutting ourselves off from our closest allies will only diminish, internationally and economically, the country they profess to feel pride in. It is not patriotic to knowingly make Britain poorer and less powerful, and the only thing that risks being surrendered by  this process is Britain’s prosperity and reputation in the world.
Having sought to undermine the motives of their opponents, the second step in the no-deal playbook is to distort the verdict of the referendum and the mandate it delivered. The vision of Brexit that 52% of voters put their faith in three years ago carried with it some very specific promises. In 2016, Boris Johnson and those who are now leading members of his Cabinet promised that,
“there won’t be a sudden change that disrupts the economy”;
that:
“The idea that our trade will suffer … is silly”;
that,
“we will negotiate a new settlement with the EU”;—[Official Report, Commons, 10/9/15; col. 529.]
and that:
“There will be no change to the border between Northern Ireland and the Republic”.
These are the promises made by the proponents of Brexit, and these are the promises their mandate required them to deliver.
However, it is impossible to reconcile these promises with a no-deal Brexit, an outcome that the Government’s own analysis shows will reduce GDP by 9.7%, increase borrowing by £30 billion, disrupt trade to the extent set out in Operation Yellowhammer and inevitably create a hard border on the island of Ireland. Yet still the Prime Minister seeks to misappropriate this mandate, distorting it to impose a totally incompatible version of Brexit, gaslighting us into believing that no deal somehow respects the referendum and honours the result. The reality is that there is no mandate for any Brexit that fails to deliver on the specific promises made. The problem for the Government is that these promises are fundamentally undeliverable; you cannot leave the European Union and retain the benefits that being a member provides.
So, the third step in their strategy is to assert that democracy demands they deliver something else entirely. Despite having no personal mandate and heading a minority Government, the Prime Minister claims that by pursuing a policy nobody voted for, he is somehow upholding democracy. He says that elected MPs who point out that this is not what their constituents voted for should “stand aside”. The truth is that it emphatically is not democratic to promise one thing and then seek to deliver something completely different. That is the opposite of democracy. When we have travelled so far from what was promised in 2016, the only democratic route is to put the decision back to the British people in a confirmatory public vote.
Having failed to deliver their impossible promises, the fourth step in the no-deal playbook is to deflect responsibility for this failure on to anyone but themselves. The Prime Minister and half his Cabinet may have twice voted against a deal, but it is now the fault of Opposition MPs that Britain is yet to leave. The Prime Minister may have acted unlawfully, but it is now the fault of the judges for saying so. The Conservative Party may have spent months on a leadership election, but it is now the Labour Party’s fault that time is being wasted. When the Government are again found to have failed to come up with workable proposals, it will of course be the EU’s fault that a deal remains elusive.
As each of the once-claimed benefits of Brexit have in turn disintegrated, the Government are now left only with the mundane entreaty to “get Brexit done”. Gone are the promised sunlit uplands. Instead, in the Prime Minister’s words, let us “put Brexit behind us”. This is the fifth and final step in their strategy: to pretend Brexit is an event, not a process—a chore that, once completed, frees us up to do the things we enjoy. Yet having first built a fallacy, they are now selling a fantasy. The truth is that, with or without a deal, any form of Brexit would be only the start, not the end, of a long and painful journey. An entire generation would be consumed with a process that would devour our politics and diminish our resources. Gone would be the time and money to tackle the challenges that first drove Brexit or the priorities that have been neglected ever since. In reality, getting Brexit done is yet another attempted deception.
This is the no-deal playbook: a strategy to crash Britain over the cliff edge to achieve the most extreme form of Brexit and fulfil their long-held ideological obsession. It is a strategy designed to bend the facts—to insist black is white. However, let us not be fooled into thinking that this is the strategy of a confident project that believes it is winning. It is the last resort of an ever-more desperate Government; of a project built on lies now colliding with reality.

Earl of Clancarty: My Lords, the noble Lord, Lord Callanan, wishes to take note of the UK’s withdrawal from the EU. However, as a country we have not done so yet and, according to the polls of the last 18 months, the majority view is that we should not do so. It is essential that those of us who want to remain in the EU continue to make that case, even as others wrongly believe that that debate ended in 2016. This is crucial, in part because a second referendum looks increasingly likely, in part because the public over the last three years have continued to learn what being in—and indeed outside—the EU means. Last, but by no means least, it is crucial because we are in a continuously changing environment which, as we approach this 31 October deadline, is already causing huge problems for business and for ordinary citizens.
Yesterday at the Conservative Party conference, the Home Secretary said that free movement will end “once and for all”. She added that instead we would have an Australian-style points system. It may be news to the Home Secretary that we have had such a system for the last 13 years. Introduced originally through secondary legislation, it has proved more than a headache since it was formulated—that is an understatement—creating increasing difficulties for, among others, academics working here or even visiting. The latest among many recent shocking cases is that of Amber Murrey, an associate professor of geography at Oxford University, who found out that, appallingly, her children are not allowed to join her in the UK from America. If this system is extended to Europe and the hostile environment deepened, it will prove disastrous for academia, research, science and the arts. They need this free movement link with Europe to work both ways.
We have never had a proper debate about free movement in this country, although I sense that beyond the confines of the Conservative Party conference one is now beginning. I applaud the passing of the motion at the Labour Party conference to support it. Ending free movement would end the hopes of many young people wanting to travel to, work in and study in Europe. One of the leavers’ maxims is “short-term pain for long-term gain” but what is important here is the permanent negative effect that ending free movement would have, not just on the present generation but on those to come, in curtailing opportunities and lowering horizons.
There would be an equally permanent effect on the service industries, so many of which depend on free movement. Service industries are hugely undervalued, yet they account for 80% of the UK economy. The possibility of us leaving the single market on 31 October is already proving a nightmare for those working in services, including many freelancers based here and in Europe. For them, Brexit is already happening. This is a large group, among whom are musicians and others in the creative industries, caterers, drivers, interpreters and IT workers. The great irony is how much of this work provided by British workers is in demand even as their livelihoods are on the line, since free movement, particularly onward and cross-border movement, is essential to this work.
The noble Lord, Lord Lilley—who is not in his place—is wrong about mobility. The CBI says that the UK would default to third-country status under EU immigration rules if no deal happens. Indeed, some workers are being turned away already and others are having their contracts rewritten at length. There is concern and confusion over work permits, tax and conditions of employment. People are urgently asking for guidance on Brexit, which they cannot access as the advice being given is too general. Will the Minister promise that the Government will address these concerns directly with those affected, and will he write to me confirming what they intend to do?
As the Minister will know, the EU is taking what precautions it can to protect its 1.2 million British citizens—as my noble friend Lord Waverley mentioned—with countries drawing up their own legislation, although ultimately the protection of British citizens should be our responsibility. The Minister will be aware that Spain has recently legislated but has included with that legislation the possibility of vetoing it within two months if its guarantees are not reciprocated for EU citizens here. The Government are providing no analogous legislation—at the very least, there should be a declaratory system—and it is clearly significantly more difficult for many to obtain settled status than the Government appear to make out. As the Minister will be aware, the media is reporting people having some awful experiences making those applications. In Spain, in particular—and in all the other countries—have there been meetings  to ensure reciprocity and what has been the outcome  so far?
I raise these specific issues in no way to excuse Brexit but simply because they are urgent. If we leave, we will become a smaller, greyer and meaner country. However, I believe that people are more and more  seeing the benefits of EU membership and that the causes of their grievances lie elsewhere. Austerity, cuts to services and the proliferation of food banks are nothing to do with the EU, which has been cast as the scapegoat throughout, but everything to do with how our country is governed at home.

Lord Monks: My Lords, the Prime Minister said this morning in his Manchester speech that no deal,
“is an outcome for which we are ready”.
The noble Lord, Lord Callanan, repeated that in his introduction to this debate, and the noble Lord, Lord Lilley, has been trying to give some substance to that optimistic remark. I will focus my remarks on whether we are ready and the areas in which a no-deal operation could result in major problems for this country, and maybe seek a ministerial update on some of the problems with no-deal planning and whether we can assess whether the UK really is ready in a number of key areas.
It is about a month since we learned via a leak about Operation Yellowhammer. Members of this House will remember that this was a gloomy assessment of the state of the UK’s preparedness for no deal. However, the Government, in the shape of the Chancellor of the Duchy of Lancaster, explained that Yellowhammer was a worst-case scenario, that the issues flagged up in it were being addressed, that the assumptions were being regularly updated, that a review was under way and that substantial progress had been made. The Government continue to make reassuring and optimistic noises about there being no problems beyond, in the words of Mr Gove,
“some bumps in the road”.
So exactly what progress has been made? Can we learn whether Mr Gove’s cheerful assessment is still justified, or are the sobering, rather depressing messages of Yellowhammer still blindingly relevant? I will select a few issues out of many in the Yellowhammer leak. Perhaps the Minister will be able to bring us up to date on at least some of these in his reply. First, in the event of no deal, is it still the case that between 50% and 85% of trucks on the Dover-Calais route are not ready for French customs, despite the work that has been done on the Calais port facilities? That was what Yellowhammer said. Is it still the case that it could take three months to sort this out between Dover and Calais, meaning in the interim that a truck could expect to be delayed by between one and a half and two and a half days on that route?
I read in the paper this morning, rather contrary to what the noble Lord, Lord Lilley, said, that the chief executive of Dover had said that a no-deal situation would cost Dover £1 billion a week. That did not seem to me to be too optimistic about what no deal would mean. These are key factors in our future trade relationship with the European Union. Yellowhammer said there was a need for an agricultural food supply chain. Is that yet in place? If so, what is it and how will it work? Perhaps we can be told about that.
Shifting away from trade for a moment, in the event of Brexit UK citizens will lose their EU citizenship and access to services such as free emergency healthcare  in other countries. What arrangements are being  made to protect and advise British citizens in those circumstances? Is anything being planned? Can anything be done? What steps are being taken to limit expected rises in food prices in the event of no deal—rises that will impact particularly on the poorer sections of our society? Finally—this is perhaps an issue that has not been addressed in recent debates in this House—how can we stop clashes at sea between UK and EU fishermen if existing arrangements on respective shares of the channel, the North Sea and the Irish Sea lapse with nothing to replace them? We know that some fishing fleets are staffed by pretty excitable people in some countries, probably including parts of the UK.
As others have said, we are hearing a lot this week about “Get Brexit Done”, but my brief list of questions—there are many others, not least on the Irish situation, which I could easily have quoted—shows just how difficult a no-deal Brexit would be. As others have said, 31 October will not be the end, or even the beginning of the end; it will be merely the start of a tortuous negotiation that will take years, given the accusations and bad faith that will cloud it from the start and the poison in relationships that will develop from any no-deal situation. Does the Minister accept that that could be the case, and can he provide us with any enlightenment on progress, or the lack of it, since Operation Yellowhammer and on what a no-deal Brexit would really mean?

Lord Taverne: My Lords, I had not realised that I was the next speaker—

Baroness Berridge: My Lords, my noble friend Lord Saatchi is here.

Lord Saatchi: My Lords, the Minister was kind enough to praise your Lordships’ House for its stamina. With your Lordships’ permission, I should like to return the compliment and praise him for the calm and reasonable way in which he has handled our debates.
It has all been a big misunderstanding. You hear it said that the people have spoken, that we had the biggest democratic vote in British history, that we must respect—that is the word used—the will of the people. It is said that we made a decision. It is true.  We did make a decision in the referendum. The decision was: we cannot decide; we are not sure. The misunderstanding of that result is the cause of all our present difficulties.
You hear it said that the referendum result was the same as a general election, in which one vote is enough. But we, the people, do not agree. We know better. We never challenge a general election result, even if it is a victory by only one vote. That is because we know that, if we change our mind, we can change the Government at the next general election. This referendum is not like that. The result cannot be changed, and therefore one vote is not enough. In the court of public opinion, this would be called a “hung jury” or “deadlocked jury”; that is,
“a judicial jury that cannot agree upon a verdict after extended deliberation and is unable to reach the required unanimity or supermajority”.
That is the definition.
The problem arises all because of one word: “sovereignty”. What is in that word? Is there such a thing? What about the weather? For temperature, we do not seem to mind centigrade rather than Fahrenheit. For distance, metres and centimetres are okay rather than feet and inches. Regarding time, we are about to put our clocks back with Europe. On weight, I do not know about other noble Lords, but I have only kilograms on my digital scales, not pounds and ounces. We do not seem to object to the same procedures on science and medical research, terrorism, security, banking regulations, et cetera. Therefore, we now need a more grown-up conversation.
Usually, one conversation is enough to change history. It has happened many times before, so why do we not try it now? There are only three people in the room for this conversation, which is as it should be: our Prime Minister, the “PM”, and “Them”, the German Chancellor and the French President. This is the conversation that should take place—it is not too late:
“PM: Lately it seems we can’t talk without arguing.
Them: Well, what do you want now?
PM: We need to have a little talk, that’s all.
Them: About what?
PM: We’re through. Out. You know that—31 October.
Them: We don’t really care whether you come or go. All we care about is that you don’t set a precedent for anyone else.
PM: What about the Irish border problem?
Them: Northern Ireland? Where’s that again?
PM: We want a deal.
Them: Trade deals? Of course. No problem. My assistant will book a conference call.
PM: I know it annoys you to set a precedent. I’m not asking for any special treatment for us. Just a few changes in the EU for the benefit of all fellow members.
Them: Fellow members! From you! You think only of yourself. You’ve been sulking for years! Variable geometry! Two-speed Europe! Opt-outs!
PM: Yes, sorry about that.
Them: And we’re sorry that you’re leaving.
PM: Oh, you didn’t want us to leave? Why didn’t you say that before?
Them: So what?
PM: So, I’ve only got one question for you. We’ve had three years of arguments about our terms for leaving. How about three minutes on terms for remaining? If we agree to stay, what are you offering?
Them: What do you want?
PM: We don’t want anything. We’re leaving anyway. But you keep saying how sad you are to see us leaving, how bad that would be.
Them: So? Go on.
PM: We want equality. With you two. That’s all. Not a subordinate. Not a junior member. We don’t want you to boss us around. And we don’t want to boss you around. Equality. Equal voting rights with you on all EU legislation.
Them: What else?
PM: We want to recognise free movement of people, but we also want to recognise the legitimate concerns among members about uncontrolled immigration. All members want that too.
Them: Is that it? Anything else?
PM: No, nothing else. That’s it. ‘Remain-plus’ we could call it.
Them: Then you’d stay?
PM: Yes.
Them: What about America? America wants us to fail. They think your departure hurts us. America wants you to leave.
PM: They do now, but they’ll come round.
Them: And what about your Parliament? Will they go along with it?
PM: Yes, because it’s the only way to ‘heal the wounds’, ‘unite the nation’.
Them: And what about us? What do we get out of it?
PM: You get what you always wanted: unity, no breakaways, no precedent for anyone else. We all stick together. Peace, security, and the EU to be a vanguard force—a frontier spirit, an economic superpower to match America and China. What say you?
Them: OK! Done! Let’s go! When do we start?”
That conversation would change the course of European history: Britain to have voting power equal to that of France and Germany, and reasonable control of immigration. It is called leadership, and if Germany and France accepted that we were equal to them in votes, which currently we are not, everyone would be happy. Remainers would be pleased because it would make the case for remain more defensible, as we would not just be going back to where we were before, and leavers would be pleased because it would resolve their No. 1 problem—sovereignty—as we would not be subordinate to anyone.
Therefore, I encourage your Lordships’ House to end the current dismal choice that we, the people, have between the least-worst options that nobody wants. We need a North Star—a guiding light—and your Lordships’ House can help to provide it. We are at a historic moment of maximum British power in Europe. Now all we have to do is use it: one conversation to change history.

Lord Taverne: My Lords, what a delightful speech. There was a lot of wisdom in it.
Let me cast caution to the winds and start by making three predictions. First, Boris will not get his deal. This now seems an almost uncontroversial forecast, judging by all the comments from Brussels.
Secondly, any challenge to the Benn Act, which the Government seem to ignore, will fail for the reasons advanced by the noble and learned Lord, Lord Goldsmith. So, without a deal at the end of the EU summit, Boris will be legally required to send a letter requesting an Article 50 extension of the Brexit debate.
Thirdly, and most controversially, Boris will not be Prime Minister at the end of October but will probably still be leader of his party. Why? He cannot send the letter that he will be legally obliged to send—he would sooner be dead in a ditch. He said that he will not disobey the law, but he also states that he will achieve his goal of Brexit by 31 October. The two aims are incompatible. The Supreme Court will almost certainly find means of making the law prevail. The only course left for him is to resign as PM or be deposed.
At this point, my crystal ball clouds over. It begins to look increasingly likely that, if Boris has not resigned, there will be a vote of no confidence and he will be replaced by a temporary Government of national unity. This will not be led by Corbyn. It is beginning to look likely that someone such as Margaret Beckett would be an acceptable Labour temporary PM.
The first act of such a Government must be to secure an extension of the date fixed for Article 50, and the second must be to call for a new referendum as the only way to resolve the present impasse. This must precede, and cannot be part of, a general election, because the referendum must offer a clear choice, this time based on actual knowledge of what Brexit means. By contrast, in a general election voters vote for different parties for a great variety of different reasons. It seems that Labour has sensibly come round to this view.
There are many problems surrounding the wording of the choice in a referendum, but the obvious clear referendum choice, without a withdrawal treaty, will be between a no-deal Brexit and remain. A general election is bound to follow. It will be very nasty, with the future of democracy at stake. As was eloquently described by the noble Lord, Lord Anderson of Ipswich—and as Boris has made clear—it will be the people against their enemies: Europe, Parliament, the courts and lawyers, the Civil Service and anyone who still believes MPs should be representatives, not delegates.
One reason that it will be unlike any previous election is the change in the Conservative Party. I am now in my 10th decade. When I was first elected as an Opposition MP in 1962, I had great respect for eminent Conservative leaders such as Macmillan, Butler, Macleod and Carrington, as well as thinkers such as Ian Gilmour.
Boris’s Conservative Party has ceased to be the party of parliamentary democracy of Locke and  Burke. It has instead become the party of populist authoritarianism, which has adopted hook, line and sinker the doctrine of Rousseau—that the will of the people, as interpreted by the Government, must prevail over all dissent, the rule of law and the rights of the individual and minorities. Rousseau’s was the doctrine preached by Robespierre and the Committee of Public Safety, much favoured ever since by every autocrat from Mussolini to Hitler to Erdoğan. Is this really the kind of campaign and party that once-moderate Tories are now ready to support? Locke and Burke must be turning in their graves.

Lord Dykes: My Lords, I very much thank the noble Lord, Lord Taverne, for his remarks. I agree with every single comment he made. We thank him.
I also thank the noble Lord, Lord Saatchi. I think he is the only person I have ever seen getting up late in a debate—I have never seen it before. I forgive him because he made a very amusing speech.
I am also thankful for the speeches by the noble Lords, Lord Livermore, Lord Monks and Lord Taverne, as well as by the noble Earl, Lord Clancarty, for showing once again that the madness is still carrying on but will not last forever. We know that it is coming to its nemesis. No one knows when, but I think and hope that it is fairly soon.
I liked that, on 5 September, the front page of the Daily Mirror—a very strongly pro-European newspaper —said “Britain’s worst PM”, with a large picture of Boris, of course. It then said: “(since the last one)”. I still very strongly blame Theresa May, who had the wonderful opportunity in the election on 8 June 2017 to say, “I have lost the mandate that I was seeking. I had a 20-point lead when I launched this campaign. That no longer exists. We must therefore have a national consultation in this country about the way forward and what we do, involving everybody”. She did not, but repeated the absurd mantra, “Brexit means Brexit”. The nightmare continued.
We still have the nightmare, with an even worse Prime Minister—I think I help Theresa May a little bit by saying that—in the form of Boris Johnson. He is a person who has only a glancing relationship with true facts and says that he definitely did not do something but cannot actually remember, which is a unique new way for him to say, “Once again, I am indulging in a terminological inexactitude, as I am accustomed to do”. What a pity that we have this nightmare continuing and it is taking longer than we were originally hoping—those of us who wanted, after the 8 June election, to see a change and common sense beginning to prevail.
The Conservative Party used to be a wonderful and encouraging party of moderate views. I was a member of it and an MP in the House of Commons for many years. As the noble Lord, Lord Taverne, said, there were very excellent, eminent people—Harold Macmillan, Edward Heath and others led the party to great success. Macmillan was a convinced European, partly because of his memory of the First World War.
The lead that we get in the Lords now is because the Lords has a built-in majority for Europe, which is always very comforting for us who join that majority in these debates. We thank above all the Liberal Democrat group in this House, who have the maximalist attitude towards positive views on Europe. They believe themselves à outrance—for others, of course—that there should not even be any further contest and that we should go straight into the withdrawal legislation and then decide to extend the date.
This stance that we have now in the Lords also mirrors the striking change in public opinion away from the 2016 referendum. We need to remind ourselves that it was advisory—giving an opinion. Cameron deciding to say, “I will immediately accept the result of that referendum” was a matter for him—yet another mistake by a Tory Prime Minster in more recent  times. We are living with the effects of that. His book has not convinced many people of his wisdom as a Prime Minister.
We now have this change in atmosphere, public opinion and views. The people’s marches have gone from 100,000 originally to 700,000, and to 1 million last time—in October last year. I am sure that we are due to see more than that at the march on 19 October. Nearly 70% of the voting public have become anti-Brexit. People may think that that figure sounds too high, but it is not. It is true from all the analyses given by the various polling examinations and private research.
The Prime Minister—known for his lack of wisdom in all respects, I am afraid—was supported by  97,000 original votes, mostly from elderly, disgruntled Tory association members. I think that the total Tory membership is now 130,000—there may be one or two hangers-on from the previous Brexit Party formation, UKIP and so on, but I would guess that that is the rough figure. That is fewer than the Liberal Democrats, who have 140,000 members. We see Labour with more than 500,000 members, most of whom are much younger people who, as other speakers have said, regret the tragedy of losing free movement in Europe above all—for their careers, holidays, working, meeting other people, learning languages, all the precious things that the younger generation in this multinational and multi-ethnic country want in the future.
Instead we have this: the majority against Europe is only in England. The majorities in Northern Ireland and Scotland, and now in Wales—it has changed there—are strongly pro-Europe. That is the reality. We must show this phoney PM with his phoney views that the time is now up. The DUP remains the most unpopular and unsavoury party in Northern Ireland. Its views are dismissed by more and more people there. Brexit is absurd. England needs to grow up and live in the real world with the other countries of the United Kingdom.

Viscount Chandos: My Lords, however much all of us are suffering from Brexit fatigue, we should welcome the fact that we are able to hold this debate today. The Prime Minister would like to have announced the submission of a novel “first and final” offer to the EU solely to the party faithful in Manchester, without the risk of any parliamentary interrogation at all. While it is deeply regrettable that he did not instead make a Statement to the House of Commons, we can in this House try to provide a warm-up to what I hope will be tomorrow’s main event in the other place.
I should like to address two principal points in the short time available: first, on the damage that the Prime Minister continues to do to our constitution and parliamentary democracy, which in turn makes a non-damaging resolution of the Brexit problem even harder to achieve and, secondly, giving an initial reaction to the proposals published by the Government this afternoon and what they may imply.
“There is one part of the British system that seems to be on the blink … if Parliament were a school, Ofsted would be shutting it down”—
the Prime Minister said this in his speech in Manchester earlier today, having been unsuccessful in trying to play the role of Ofsted. It is just the latest comment in the relentless stream of denigration to which he has subjected Parliament, let alone the arrogant contempt  he has shown for the Supreme Court. Neither the Prime Minister nor any other individual has the authority to interpret the decision of the 2016 referendum and determine its implementation. That authority lies with Parliament.
In reasserting that the 2016 referendum was advisory, or, in the terminology of the 2015 House of Commons Briefing Paper, “pre-legislative” and “consultative”, I do not think its result can or should be lightly dismissed; but Parliament is mandated to implement it. Indeed, on 16 June 2015, during the Committee stage of the EU referendum Bill, the Conservative Minister said:
“The legislation is about holding a vote; it makes no provision for what follows. The referendum is advisory, as was the case for both the 1975 referendum … and the Scottish independence vote”.—[Official Report, Commons, 16/6/15; col. 231.]
In turn, the High Court, in its ruling on the first Gina Miller case in November 2016, wrote that the EU referendum Act,
“falls to be interpreted in light of the basic constitutional principles of Parliamentary sovereignty and representative parliamentary democracy … a vote in the referendum in favour of leaving the European Union would inevitably leave for future decision many important questions relating to the legal implementation of withdrawal from the European Union”.
Does the Minister believe that Parliament has been fulfilling its proper, legitimate role and that the impasse of the past nine months reflects the intractability of reconciling the Government’s multiple objectives and the range of public opinion, rather than, as the Prime Minister said, it refusing to deliver Brexit and refusing to do anything constructive? Could this Parliament have delivered Brexit? If the last Conservative Government had behaved constructively and consensually, yes, I believe it already could have done. Could this Parliament still deliver Brexit? The past failures have polarised positions, and the language and behaviour of the Prime Minister and his Cabinet colleagues, notably the Attorney-General, have made it even harder.
Will this Parliament approve a Brexit deal based on the proposals contained in the Prime Minister’s letter today to the President of the European Commission? First, the EU would have to agree to them and, I have to say, the rudeness and hypocrisy of the letter’s opening paragraph set a deeply unhelpful tone, even if there is greater willingness on the Government’s part to negotiate than they have signalled. I do not believe that the EU would have been any more likely to agree a deal based on these proposals had the Benn Act not been passed; or that the Prime Minister’s attempts to signal an ability to ignore or get around it enhances his negotiating position.
In the, frankly, unlikely event of the deal as tabled being agreed with the EU, will, and should, Parliament approve it? It is, as the leader of the Opposition has said,
“worse than Theresa May’s deal”.
Reading between the lines of the proposed “two borders, four years” approach to the Irish border, it appears certainly to threaten the delicate and complex balance that underpins the peace process, even if, by some miracle of science fiction, no new physical infrastructure is introduced at or near the border. The direction of travel towards a free trade agreement for the UK as a  whole is the opposite of the one that could deliver a future relationship with the EU with minimal negative economic impact.
I look forward, without holding my breath, to hearing the Minister answer the questions of my noble and learned friend Lord Goldsmith as to what the Government’s intentions are in relation to the obligations under the Benn Act. In any event, as with other noble Lords, it seems to me that we are heading very soon to a general election. While I fear that the tone set for it by the Conservative Party will be deeply negative, I believe that the British people and electorate will see through that.

Lord Cormack: My Lords, there was a very interesting quotation in the Times this morning. On the leader page, there is always a tiny column headed, “The last word”, which today was a quotation from Aldous Huxley:
“Facts do not cease to exist because they are ignored”.
That is something that the Prime Minister and all members of his Government should take to heart, because there are two salient facts that should run through this debate and two underlying facts that we all neglect at our peril and that of our country.
The first salient fact is this: in a bitterly divided nation, we have cause to give thanks to those brave Members in another place who put country before party and who—conscious of the fact that the vast majority of people in this country do not want to leave without a deal, and that Parliament would be neglecting its duty if we left without a deal—voted even knowing that they would probably be expelled from their party and mine. We all owe them a great deal. We also owe a great deal to the Justices of the Supreme Court who, far from being enemies of the people, have shown that they understand what is necessary for the continuance of parliamentary democracy.
The two underlying facts that I ask all your Lordships to bear in mind are these: we would be letting down this country if we allowed anyone to lead us into an election which was Parliament versus the people. As has been said earlier in this debate, Parliament is the representative of the people. Individually in constituencies and collectively at the other end of this corridor, those men and women are not the enemies of the people. Anyone who seeks to engineer an election where that is the underlying theme is himself an enemy of the people. The other underlying fact is that we cannot be proud Members of this House if we do not recognise—as I think we all do—how important it is that laws that are passed are obeyed.
I have a Question on the Order Paper tomorrow which I hope might flush out from the Government the answer to the dilemma that has run through our deliberations since we came back from the non-Prorogation. How do we achieve an exit on 31 October and, at the same time, comply with the law? Of course, like my noble friend Lord Tugendhat, who made an admirable speech which I commend to everyone, I wish the Prime Minister success in getting a deal. But what a complete defeat it would be for him, the Prime Minister of a minority Government, who has himself  been responsible for expelling some of the finest members of his party, if he gave up negotiations when they were perhaps approaching success.
Of course, we cannot go on for ever and ever. I am one of those, a bitterly disappointed remainer, who has accepted from the word go that we have to come out. However, the Prime Minister himself should remember, and Mr Jacob “languid” Rees-Mogg should remember, that they voted for the deal that Theresa May had negotiated. If we begin, because it is beginning, a long, protracted series of further negotiations on the basis of a quarrel with our European friends and neighbours—on crumbled hopes—what chance do we have of being able to work out a long-lasting, constructive relationship with them?
The stakes are high. Parliament has a real role to play, but I beg my noble friend to recognise—it is important that we all do—that, if Parliament is trampled on because the Prime Minister wants to stick to a particular time on a particular day, that will not serve the national interest.

Lord Shutt of Greetland: My Lords, this is  my first appearance on matters European since the Article 50 notice was triggered. Your Lordships may well say that it has all been said many times, but not by me. That is true up to a point, but my contribution has to be put into context.
The referendum took place on 23 June 2016—three years and three months ago. Many of us believe that the leave campaign put out a false prospectus. We can all say all sorts of things that we thought were wrong: £350 million a week on the bus; easy-peasy to get a good deal—by the way, last week that changed to a “walk in the park”. There was not a word on the case for the UK giving leadership. There was no mention of the problems that leaving the EU would bring to Ireland, north and south, and the potential damage to the peace process. There was no mention of the threat to the UK as a whole and the potential of a Scottish secession; no mention of economic damage and all that that brings to employment. Well, that is enough of that—it was a false prospectus.
I turn back to the referendum. It was consultative, not binding—but it is why we are here. Some 46.5 million people were eligible to vote; 17.4 million voted to leave, as is frequently mentioned by the Brexit Minister in this House; 16.1 million voted to remain; but 13 million did not vote at all. I have checked half a dozen opinion polls which were taken shortly after the referendum. It was quite clear that the bulk of those who did not vote regretted it but were remainers.
Now, in October 2019, three years and three months after the referendum, there has been a distinct change in the make-up of the electorate. According to the Office for National Statistics, just over 600,000 Britons die each year. Therefore, in the region of 2 million of those eligible to vote who were on the register are unlikely to be able to vote today. The other side of that coin is that 750,000 youngsters each year become eligible to vote at 18 and therefore 2.5 million people between the ages of 18 and 21 who are alive today were never consulted in 2016—quite a change.
What has happened since? Other people have voted many times, here and in the other place. According to information supplied by the ever-helpful House of Lords Library, MPs have voted 227 times on UK/EU matters since 23 June 2016 and your Lordships have voted 52 times. In other words, the people were  given one opportunity, but MPs and Peers were given 279 chances, and counting. Why is an out-of-date consultative referendum decision still thought to be valid? When does the Minister think it will cease to be valid? Surely, people are entitled to take the view that, if MPs and Peers have had 279 chances to vote on this crucial issue during the last 39 months, they, the people, ought to have a second chance now that they are more informed. This Government are not on firm foundations.

Lord Naseby: My Lords, we are all well aware that, for the last three years, the country and Parliament have wrestled with the problem of Brexit. I therefore pay tribute to the current Government for the way in which the Prime Minister, the Ministers in charge of Brexit details and, in particular, the hundreds if not thousands of civil servants are wrestling with producing a workable basis on which we can move forward with either a deal or no deal.
The noble Lord, Lord Monks, asked whether there had been any progress over the last six months. I can only vouch for one particular industry in Northampton, which is a distribution base. I am told by the hauliers in Northampton that, yes, they are confident that they can continue as they do today under any changes that are made, and that their relationship with Calais and other ports is a good one now and will continue as such. So I say a big thank you to them, and to all the people who are involved at the moment.
I do not say thank you, frankly, to those MPs such as Messrs Grieve, Letwin and Burt. Alistair Burt is my MP and was the Tory side of the Benn Bill. I do not think that they did play a role—or at least not a role that I have ever seen in Parliament before. I do not say thank you to the two former Prime Ministers. I hardly think that John Major was a great success over Maastricht, or indeed in the 1997 election, if I remember rightly—not least as I lost my seat, along with over 100 others. I do not say thank you to Mr Cameron, whose idea it was to have a referendum in the first place and who saddled us with this extraordinary business of a fixed-term Parliament.
I am by profession an economist—a practical economist who spent 20 years in business working in the UK, India and Sri Lanka. Anybody who is a businessman looks at the general situation that they face in the markets that they are in. I was interested to note today two headlines in the Telegraph about the world economy. The first is that Swedish economy is the canary in the coal mine, and it has just keeled over: there has been a violent drop in manufacturing output right down to 2008 levels. Secondly, the risk of global recession grows as factory woes go from bad to worse, particularly in the US, the EU, France and Germany. So the background is not good.
I have mentioned the haulage industry in this country. Add to that the pharmaceutical industry, which I know well. Every company that I ever worked for in  that industry had reserves and action plans for reacting to shortages, whatever the difficulties might be, and I am totally confident that every company in that industry is ready and able, whatever the result may be. There will be some potential difficulties. I drove back from Devon and noticed all the overhead signs telling every lorry driver and every other driver that, if they are not yet aware that things may change on 1 November, they should take action. So well done the Government on that front.
I have just come back from Sri Lanka, where there is the port city of Colombo. It is open for business, similar to the Victoria Dam, and there is a conference in the City of London. I am also involved in Chile. I declare an interest as chairman of the Cofradía del Vino Chileno. That country, on its own basis, has now contracted 26 individual deals with other blocs and countries covering 86% of global GDP. If Chile can do that on its own, I am totally confident that we can do it on our own.
Of course there will be challenges, but what on earth is the Bank of England there for if not to react to challenges? What is the Treasury there for if not to provide some incentives and help in the interim? The idea is being put about that MPs want to see the list of industries and companies that may be in difficulty. That is entirely wrong. It would undermine that particular company, its employers, its employees, its pensioners and its supplier relationships. That information must remain confidential.
As colleagues will know, I spent a few years as Chairman of Ways and Means and as Deputy Speaker; I took through the Maastricht Bill. I had a little look at the proceedings of the Benn Bill, and by any yardstick they are unusual. Standing Order 24 is not something that you normally see being used for a Private Member’s Bill. That does not necessarily mean that it is wrong, but it is certainly quite extraordinary, particularly when a Private Member’s Bill has massive consequences for the nation and our economy—and it never seemed to follow any of the normal parliamentary procedures. Maybe that is right and maybe that is what should happen, but I say this: a law has now been brought in over Prorogation, and if I were in government I would have a long, hard look in relation to the letter. I see that the noble and learned Lord, Lord Goldsmith, is getting a bit worried that there is something amiss with that particular element of the Bill. I suggest that if I were sitting there, I would have a long, hard look at it as well.

Lord Heseltine: My Lords, three days after the referendum I wrote an article in the Mail on Sunday saying, “The fightback starts here”. I have no hesitation at all in reiterating that position. I believed that, in the light of circumstance and the evolution of truth, we needed a referendum or a second election to deal with the issue. Why was I so preoccupied to argue for a further look? It is because I believe passionately that power in this country rests here in Parliament, and it is within our framework that we understand all too clearly how the system works. The Prime Minister  depends on a majority in the House of Commons. The Prime Minister chooses the Cabinet, in which the Prime Minister is first among equals. All my political life I have argued that—as the noble Lord, Lord Taverne, eloquently pointed out—after the end of the impoverishment of the Second World War and the conversion of Empire to Commonwealth, all Britain’s interests lay in a new destiny with our neighbours, whom we had spent a thousand years fighting, in creating peaceful parliamentary democratic institutions.
It is interesting and coincidental that today, the first Question centred on what might be seen as rather a small incident in the context of things: the sacking of Sonia Khan by an apparatchik in Downing Street. If that had happened to me, I hope I would have resigned, but it is symptomatic of something much more serious, to which many of your Lordships have referred. First, three Privy Councillors were sent to advise Her Majesty on the proroguing of Parliament without the Cabinet knowing what was happening. Secondly, Parliament was closed down illegally and therefore had to be restored by the Supreme Court. I listened to Liz Truss on a BBC programme this morning conceding that the letter that went to the European Commission today had not been seen by the Cabinet in advance. So, how are the Government constituted? Who is it that is pulling the strings? Who is taking these decisions? How is it that the Cabinet are prepared to rubber-stamp the most controversial issues of our time, of which they were not briefed in advance? What do they think they are there for, as members of a Cabinet?
I disagree with the noble Lord, Lord Campbell, who felt that watching the Prime Minister’s party conference speech this morning was a waste of time. Far from it. First, he is without any shadow of doubt the best music hall turn in politics, and it was full of great jokes. But it also revealed very clearly what the strategy is, and what it has been since day one of his premiership: to combine an agenda of right-wing hard-line politics with Brexit to try to get it through a general election campaign by attracting back Nigel Farage’s supporters. It is as blindingly obvious as that. You had only to listen to the speech today, in which the ultimate target was Jeremy Corbyn. But Boris has got it wrong. Jeremy Corbyn is probably the only person on the Labour Benches who actually agrees with Boris about Brexit. To focus on Corbyn is completely to miss the point.
The real problem for the Conservative Government led by Boris Johnson is the Conservatives. It was Conservatives in the ERG who would not support the previous Prime Minister, which frustrated her ability to get a deal. It is the sacking of 22 of the more renowned members of the Conservative Party by this Prime Minister that has removed the majority on which he would otherwise exist. And where did the word “chicanery” come from? It came from Sir John Major, a former Prime Minister, talking about what he thinks this Government are up to. There are two audiences for every party conference. Without doubt, the hall erupted. I know what it is like; it is a wonderful feeling. But there is a second audience, and that is  the audience with which this Government should  be concerned. I have indicated the parliamentary consequences of what is happening, but there are  millions of Conservatives who are now voting for the Liberal Democrats, because they will not swallow the line that is peddled about Brexit.
So, I go back to the Prime Minister’s speech:
“Let’s get Brexit done, and let’s bring this country together”.
This country is more divided, more fundamentally, in more directions, than I have ever seen it in my life. The idea that we are going to give up our position of influence across the Atlantic, across the Commonwealth and within Europe and mould it all together in one by standing isolationist as an individual nation state is unreal in the changing world of today. The idea that President Trump is going to do a soft option for Britain’s trade in a pre-election period in America is a delusion of the most naive sort. The idea that 2.6 billion inhabitants of the Commonwealth are longing to open their trade doors to us while the Home Secretary is clamping down on the immigration that they want to encourage into our country is another delusion. And the idea that the Conservative Government are risking the future of the United Kingdom itself, on a dogma that was driven by extreme populism, is to me unbelievable. We need to go back to the people for an endorsement of the decision and, much better, its rejection.

Lord Davies of Stamford: My Lords, I want to begin by commenting on two of the speeches  made earlier on by the noble Lords, Lord Lilley and Lord Howarth. They were both very original speeches; those Members of the House always make original speeches. Both were the subject of considerable reflection. Nevertheless, I detected in those speeches a considerable degree of complacency about the threats facing us. I believe that complacency is such a danger in economics and in politics, in business and generally in life, that it needs to be commented on if it arises. I may say that both noble Lords have been long-standing personal friends of mine for over half a century, and we have been arguing about politics and economics together since we first met at a university in the Fens, 55 years ago. I hope that this is not the end of a beautiful friendship.
The noble Lord, Lord Howarth, said that we may go through some choppy water if we have a hard Brexit, but that is all right; we will get through that okay, with the help of the Bank of England, fiscal spending and so forth. I have to tell him that fiscal spending is not a cost-free policy. As you build up your debt—and public debt in this country has risen from less 20 years —you are gradually reducing your capacity to intervene in the future. We learned in the 1970s where that can eventually lead, and it is not something that one should do lightly.
The noble Lord, Lord Lilley, managed to make out that in fact there would be no increase in customs checks as a result of our leaving the European Union. That seemed to me inherently implausible; but he completely left out the subject of the longest delays in any border checks, which is the issue of certificates of origin, which is extremely complicated and a nightmare for those who are organising international logistics. I  think that should be taken into account. I have to tell him, too, that the continental customs authorities do not share his very optimistic view. In June I happened to be in the Netherlands, with two or three colleagues who were equally interested in the subject. We were very kindly received by the head of the Netherlands customs in Rotterdam; we saw the port there and met many of her leading staff. They told us that they have taken on about 900 new employees, simply to deal with additional UK business after Brexit. The Dutch are serious people; they do not hire 900 people just to watch the traffic and do nothing. Noble Lords can make the arithmetical calculations as easily as I can, but you can imagine, if there are 900 people who intervene with a lorry every hour or two hours, for two minutes, three minutes or five minutes, how much that will induce delays in the process of clearing trucks through Rotterdam that are destined for the United Kingdom. There is clearly a material change happening there, and the same thing is happening in other ports and suppliers. Rotterdam is of course the major port that supplies us. I do not think that complacency is in order there, either.

Lord Howarth of Newport: I am most grateful to the noble Lord and very much appreciate his kind personal words. If he would be good enough to look at Hansard and see what I said, he will not find that I mentioned either the Bank of England or the Treasury. What I do believe, though, is that our businesses in this country have a great deal of resilience, a great deal of power and a great deal of creativity, and they will be able to weather the transitional difficulties. I do not think that that is complacent, but a reflection of reality.

Lord Davies of Stamford: I must apologise to the noble Lord for adding words that he did not pronounce. I got the distinct impression that what he was talking about by way of remedial action was monetary or fiscal spending. Fiscal spending would have had the consequences that I have just outlined. I apologise to him and hope that I have not unduly traduced the message he was delivering to the House. I feel very strongly on this matter of complacency, faced with a possible recession. I know that the noble Lord will agree with me on this: recessions are very unpleasant things. They destroy businesses, they destroy jobs, they destroy the jobs that people might have had and will never have. They destroy the economic sense of security of families. A lot of the human destruction and economic destruction takes a very long time to repair. It is not something that we should walk into lightly. I am very worried indeed and I hope that he understands why that is—that we may be heading in that direction.

Lord Howarth of Newport: I very much agree with the noble Lord about the damage that recessions cause. Does he have any reflections on the fiscal policy of the Government, which has now become quite explosive and puts the country at very great risk, of exactly the nature he has been describing?

Lord Davies of Stamford: I am so glad that I am once again in thorough agreement with my noble and long-standing friend. Of course, I am very worried  about that; I mentioned it in our debate last week, so I will not go into that subject now, but I could not agree more on that subject.
I must turn to the proposal that the Government made today to the European Commission. It seems to me to be a thoroughly dishonest and disreputable document. It is exactly the sort of document that one would expect our Prime Minister to deliver and was probably not one where there was any expectation that it would be accepted. I suppose that Mr Johnson wanted to be in a position where he had made some offer, so that he could then say that it was all the fault of the European Union for not accepting it—albeit that he did not produce anything until a month before the deadline. The document does not address at all the matter that is of greatest concern to the Irish, which is the long-term avoidance in Ireland of an internal border or frontier. A border, in my definition—and in the definition of most reasonable people—is an administrative line on the map which, if you cross it, has practical and probably financial consequences. That does not mean that the border has to have an infrastructure at any particular point. It means simply that if you cross this line, you will be deemed to be liable in one way or another. That is exactly what we must avoid in Ireland, if we want to respect the Belfast agreement. It is what the Irish are determined to avoid. That is the position at present: there is no internal border on the island of Ireland. You can go between any of the 26 counties and the six counties, any time you want, with no consequences whatever of an administrative or practical kind. That is what we need to preserve. That is not achieved by this proposal and I imagine that for that reason alone it will and should be rejected.
The contradictions have already been pointed out by my noble friend Lord Adonis. They are quite serious because they have completely devalued the document. On page 3, the document says:
“This is entirely compatible with maintaining an open border in Northern Ireland”.
In the next paragraph, it says that,
“all customs processes needed to ensure compliance with the UK and EU customs regimes should take place on a decentralised basis”.
If there is an open border in Northern Ireland, why do you need customs processes and regimes? That is completely contradictory. I am taking a little more time, but I had two interventions.
The other notable contradiction in this document is on page 2, where it says that the proposal,
“provides for the potential creation of an all-island regulatory zone on the island of Ireland”.
Two paragraphs later, it says that under these arrangements,
“Northern Ireland will be fully part of the UK customs territory”.
These are blatant contradictions and devalue the whole document.

Baroness Berridge: My Lords, while there has been grace because of interventions, I remind the House that the advisory speaking time is six minutes.

Lord Houghton of Richmond: I think that is the cue for me to stand up. As an ex-Chief of Defence and a relative newcomer to the House, I do not make my contribution with great enthusiasm. In fact, my motivation is brought about primarily by friends in North Yorkshire with whom I spend my weekends. I feel a duty to reflect some of their anger, frustration and confusion about the state of the country and what this House does. I want to make some observations about the state of the country and our political institutions, both of which, to me and those I talk to, seem currently to lack integrity in the true sense of that word.
I start by offering four bits of context. The first is that, since the end of the Cold War, liberal democracies have ceased having to fight for internal legitimacy. As a result, populations have been neglected. Societies feel increasingly isolated from government. They feel increasingly that their concerns are not understood and not represented. Too much of politics seems to be about the pursuit of power and relatively narrow interest.
My second bit of context is that the population does not know what to believe. We live in an age in which truth is a rare commodity. The vast majority of news is either junk news, which I define as the sensationalisation of the unsubstantiated, or fake news, which I define as misinformation or disinformation designed to influence and deceive. I fear that much political debate involves as much of the junk and the fake as it does the truth.
My third bit of context flows from the first two and is probably not a new revelation. It is that the outcome of the 2016 Brexit referendum had little to do with the rational response of a well-informed public. The Brexit referendum was not a judgment on the benefits or otherwise of our relationship with the EU; it was the vehicle by which large parts of the country expressed anger at their isolation from and neglect by government. For those who study global strategic megatrends, as I used to, the referendum outcome was no more or less than the British version of the Arab spring. President Trump was the American version.
My fourth bit of context—one to which I have borne witness even in this Chamber—is that intolerance has become one of the dominant elements of the political climate. We seem to have become unable to listen to the views of those people we disagree with.
What do I deduce from all this? My first deduction is that we are consumed by the wrong issue. Our relationship with the European Union is not existential to the United Kingdom in any meaningful sense. The right or more important issues are: first, how do we sustain the integrity of the United Kingdom? Secondly, how do we restore the integrity of our political system? These are the issues which should inform future action.
Given the context I have described, my own view is that we should pursue Brexit, but it should be the least damaging Brexit that we can secure. We should then be supportive of a government approach which is fairer and more inclusive; which maximises the amount  of activity delegated to local discretion and accountability; and which rebuilds public trust in political leadership and activity at all levels.
We should, in tandem, set out to restore the integrity and civility of government and political discourse. Perhaps, dare I say it, even in this Chamber we should take far greater notice of how others view us rather than simply being dazzled by the opinion we sometimes hold of ourselves. If we can achieve all this, we will go a long way towards regaining some national self-respect.

Lord King of Bridgwater: My Lords, it is a pleasure to join in at this stage in the debate and recognise the contribution that the House of Lords is making to showing that you can debate the issues of Brexit without the sort of bad temper and extraordinarily bad conduct that has existed in the other place and led to a serious loss of public respect for Parliament.
In the various exchanges that have taken place, I particularly enjoyed the contribution of my noble friend Lord Heseltine, who is of course an authority on good jokes in conference speeches. I seem to remember him on one occasion describing Labour’s economic policy as “all Balls”, in reference to the shadow Chancellor of the time, which the Conservative conference much enjoyed. I also very much agree with him that the failure to consult the Cabinet on recent issues is extremely poor and certainly should not be repeated. It is also a severe reflection on the present membership of that Cabinet.
I also believe that it was a very serious mistake to seek to prorogue Parliament when we did. There was no need for it and I certainly was opposed to it at the time. But that is probably as far as I go in supporting my noble friend. His enthusiasm for all things European was perhaps helped by the fact that he used to delegate to me the responsibility of going to all the Environment Council meetings in Europe, avoiding the problem of getting involved himself in some of those discussions—but I will let that pass.
The reason I am concerned about the paralysis we have had over Brexit is that we now live in an extremely dangerous world. Look around at the situation in Syria, Yemen or Afghanistan. Look at Iran and its activities. Look at the growing strength of China, the risk of American isolationism and the push from China at this stage, just after its great 70th anniversary. Russia and China both have 2 million men under arms at this time, in a dangerous and unstable world. There is the difficulty and embarrassment of Hong Kong, coming at a time of semi-paralysis, when the people of Hong Kong are looking to see what the United Kingdom might or might not be prepared to do and getting a pretty big lack of clear signals.
There are other challenges that are quite new to the world. Undoubtedly, there are dire warnings about climate change. There are the far too inadequately considered problems of population growth, which will lead to continuing mass migration, particularly out of Africa, and the changes that that will produce. There are the new developments of cyber and social media. There was the issue of drones even before we had the attack in Saudi Arabia, and the new, cheap weapons  that are available around the world to terrorist groups and hostile Governments, for extremely dangerous activities. And at this time, here is the United Kingdom, paralysed pathetically and battling through this issue. Against that background, we have proudly used the phrase that the United Kingdom has “a contribution to make”. We talk about being a force for good in the world, but this force is paralysed and is not making the contribution that is seriously needed.
I come to this situation. I had the honour to move a Motion on the Address for the Queen’s Speech. That speech referred to the proposal for a referendum Bill. I said in that speech that I hoped we would remain, but also that there would be a substantial vote in favour of leaving. I represented the United Kingdom for six years in different Councils of Ministers, and I found that the strength of the United Kingdom’s position was that we did have reservations about Europe and that, if we did not bring some attention to the issues that we were raising, there was a risk that we might leave. We can talk about the budget rebate, about no thank you to the euro or no Schengen. But that card is now lost. I also see the developments happening in the European Union. I notice that it is seeking to appoint a new commissioner for the eastward progression of the European Union.
In making these very truncated remarks necessary to oblige all noble Lords today, I feel that we now have to accept that Europe is moving away. I used to represent the United Kingdom when there were nine around the table. With 28 and rising, and an increased pressure for a united states of Europe, now is the time to enter into a sensible agreement to remove from the European Union, but to set down straight away work to establish the friendliest relationships going forward with all those countries in Europe and the European Union itself.

Baroness Altmann: It is a pleasure to follow the noble Lord, Lord King. We are here to take note of the UK’s withdrawal from the EU, which of course has not happened. I agree with my noble friend Lord Tugendhat that the divisive rhetoric that blames the fact we have not left on a remainer Parliament is entirely wrong. It is the Brexiters who have blocked Brexit. Sadly, extreme Brexiters have taken this Conservative Government further and further from compromise. After two years of negotiations, the withdrawal agreement negotiated with the EU was rejected by Parliament, but not because of remainers or the Opposition. In the third vote in March 2019, Hansard reports that 286 Members supported the withdrawal agreement, including the backstop, while 344 voted against—a 58-vote defeat for the Government. But 28 Conservatives and 10 Democratic Unionist Party Members voted against their Government. If these 38 had supported the deal, there would have been an 18-vote majority and we would presumably not be facing no deal now.
Since then, the current Prime Minister has apparently changed his mind and, despite voting for it in March, has decided that no deal is preferable to accepting the backstop. I have witnessed good colleagues resign the  Whip or leave the Tory party altogether, and 21 brave MPs expelled for voting in the national interest against the no-deal Brexit that many agree would be catastrophic for our country and party. Like my noble friend Lord Cormack, I consider these MPs to be people of high integrity and true Conservatives, who should be part of a party that is traditionally a broad church, not a narrow sect that panders to a group of extremists who wish to override the will of Parliament and dismiss court rulings.
Thus far, I am grateful that Parliament and the courts are protecting normal democratic values against the extremes, but I fear politics is being put above democracy and economic logic. We must respect the result of the referendum, but we have done. Pandering to the Brexit Party or ERG extremists, and going back on one’s previous words, are not the normal Conservative values as I understood them. The Prime Minister, in his victory speech after the referendum, on 24 June 2016, declared:
“The most precious thing this country has given the world is the idea of parliamentary democracy”.
This is not just an idea; it is a reality. Our parliamentary democracy does not consist of pitting the public against Westminster and the courts. Parliament has rejected no deal time and again, and many on these Benches are incredulous at current events. Dismissing an 11:0 Supreme Court ruling as “wrong” scarcely squares with the Prime Minister’s pre-referendum promise to make British courts supreme.
Leaving with no deal has no democratic legitimacy. Michael Gove, in April 2016, assured referendum voters that the UK would continue to be part of the EU’s free trade zone. He stated:
“The suggestion that Bosnia, Serbia, Albania and Ukraine would remain part of this free-trade area—and Britain would be on the outside with just Belarus—is as credible as Jean-Claude Juncker joining UKIP”.
No deal means losing our free trade with the EU. As my noble friend the Minister said in his opening remarks that business should be ready for no deal, I ask him when the temporary tariff regime will be published. How will smaller businesses be supported, given that we are just four weeks from 31 October? Could he tell me if there is any democratic evidence that the British people insist that 31 October must be a hard Brexit deadline?
No deal is not the will of the people. For example, in the general election in 2017, more than 17 million people voted for parties opposed to no deal. In the 2019 EU elections, 54% of voters rejected no-deal parties. How does this square with the Prime Minister’s conference speech today that we must,
“dedicate ourselves again to that simple proposition that we are here to serve the democratic will of the British people”?
In his article after the 2016 referendum, the Prime Minister stated that 16 million wanted to remain, so:
“We who are part of this narrow majority … must reach out, we must heal, we must build bridges”—
at that stage, I do not think he meant from Britain to Ireland—
“because it is clear that some have feelings of dismay, and of loss, and confusion”.
I totally support these sentiments, but what has happened to the man who penned them? Today’s supposed plans for the Irish border are, as many noble Lords have pointed out, not necessarily going to produce a deal. They do not seem to be designed to. Therefore, we are still heading either for an extension or no deal— 40 years of integration discarded.
Burke warned against sudden extreme change, so I finish with his wise words, which have helped me keep going in the face of so much madness:
“Never despair, but if you do, work on in despair”.

Lord Dubs: My Lords, I followed many of the speeches in this debate with interest, and I am delighted to follow the noble Baroness, Lady Altmann, and to say a few words. Whichever side of the divide you are on, the country is going through enormous pain. The country is suffering. Public discourse has become nasty. We are putting ourselves through a lot of torment. If we are to do that, there has to be good reason for it. I was not present for all the debate but, although many points have been made, I have heard little about why we are going through this pain and what the benefit is. The only argument seems to be that there was a referendum; therefore, we must go along with it. What is the benefit to this country? How will we be better off as a result of the pain we are inflicting on ourselves? During the war there was pain. We knew why; we willingly took the pain because we wanted this country to survive and we wanted to put down the nasty dictators—the Nazis—who were threatening the peace of Europe and this country. That pain was worth while, but today the pain seems to be for no particularly good purpose.
Many of us who support remain will be the first to say that of course the EU is not perfect. We could go through a list of faults, but on balance it is better for us to be in than out. I do not hear many people who advocate leave saying that there is anything good about the EU. They regard it as absolutely the sum of all evil that is possible.
When we passed the European Union (Withdrawal) Act, I moved an amendment, which was passed, to say that family reunion for refugees should remain under the terms of the Dublin treaty even after we have left the EU. At that point we all assumed that we would leave on the basis of a deal and we would therefore protect that family reunion provision. I ask the Minister: if we leave without a deal, will the Government still consider incorporating whatever agreement we have with the EU in the future on a no-deal basis and  that family reunion for child refugees will still be possible?
Yesterday evening I attended a function organised by the Multiple Sclerosis Society. There was a lot of discussion about the implications of Brexit. There were some academics doing research into MS and other neurological conditions who were very concerned. I will quote some of the figures I was given. UCL benefits to the extent of £150 million to £200 million-worth of EU grants. Many other leading universities get the same benefit. Some 30% of the academic staff are from the EU and between 20% and 30% of students  are from the EU. When they finish their studies they often stay here and make an important contribution to our academic life. All these things are in danger. The Minister shakes his head. I was talking to academics yesterday evening and this is what they said to me. If events prove me wrong, they prove me wrong.
I turn to Northern Ireland. I was privileged to be a junior Minister there at the time of the Good Friday agreement and beyond. I do not think that there is anything in the Government’s proposals that will save the situation. I believed all along that even if one was a leaver, which I was not, there was one argument for voting remain, which is Northern Ireland, because  the problem is insoluble in any terms that will protect the peace and well-being of Northern Ireland and the Republic. We are jeopardising something fragile and long argued for, which was achieved as a great success and resulted in thousands of lives being saved between then and now. Yet we are endangering it. It was John Hume, a great Northern Ireland politician and statesman, who said that the European Union was the most successful peace process in world history. He was right.
I went with a Select Committee to Dover about a year ago looking at the traffic from Calais. We were told in Dover that to clear a container from within the EU takes between two and four minutes. To clear a container from outside the EU takes on average one and a quarter hours. When I have put it to leavers and said, “What are you going to do about that?”, I am told, “We can solve it”. That is always the answer: “We can solve it, we can solve Northern Ireland”. When I ask how, we are never given any of the arguments. Dover will come to a halt, which is why the motorways in Kent are all ready for a stacking operation and why there are portaloos being put all over the motorway so that when the lorry drivers are stuck there all night they can use them. Yet we are jeopardising all that. It will take us years to disentangle ourselves from the EU even if we proceed down this particular path.
I believe in a new, further referendum because I trust the people of Britain to have their say. I do not think what was decided three years ago was based upon the facts made available. I believe that a lot of people in this country voted as they did because they felt left out by the political system and by political parties, and they had not been given the chance to have their say. They voted to a large extent for that reason; the other reason was immigration. I believe a new referendum is perfectly justified and a perfectly democratic thing to do. I regret that the people most affected by the decision to leave are the young people—the 16 year-olds—the EU people living here, and British people living in the EU. All three of those groups did not have any chance at all to have their say.
I do not think that take it or leave it is a negotiating position. It is a shabby way of proceeding. People say that Parliament is divided. The country is divided and it is not surprising that Parliament and the Commons are divided. The only way to deal with this is to have a referendum and say to the people, “Tell us again what you think”. I believe that they will have changed their minds between 2016 and now.

Lord James of Blackheath: My Lords, I have a very tenuous connection to justify taking your time at this late hour of a long debate. On 6 September I participated in a debate in which I tried to run a small amendment to encourage a greater concentration on the issues of sovereignty in whatever we came to as a Brexit solution. I very quickly withdrew it, but somebody got hold of the video clip of it and put it out on the internet—not me, I hasten to add. Within three days I had had more than 3 million hits, nearly all favourable.
I did not know what to do with these, so I suggested on the places where this was occurring that we should put up a copy of a report I had written called the Black Vulture—the Black Vulture being the most obvious alternative I could think of to the Yellowhammer. Yellowhammer deals with the problems that come from a no-deal Brexit; Black Vulture is to deal with the problems that might come from not doing a no-deal Brexit and what would come if we got put into a remain situation instead. I set out 19 questions to which I did not give answers and asked people to consider them for themselves. I expected to get very little response, but I got a flood of mail through the letterbox as well, usually very deeply considered.
Whereas I would have had a bet that the first question they would have dealt with was, “What’s going to happen with defence? Tell us what the EDU is”, it was not. It was my fourth question, which asked, “What is your situation with regard to the possible imposition of the euro as an alternative to the pound if we remain and how do you think it will affect us?” The result on this one was almost unanimous: if this happens it will be a disgrace because they will use qualified majority voting to impose it on us and we will have no choice. This will mean that all our taxes in this country will be sucked in by Europe. We will not have anything left for our own defence forces, our schools, our education or our welfare. All this will be taken by Europe to fund bust European countries. We will not have it. That was certainly the number one point I was getting back.
The next point was, yes indeed, what do we do about the EDU? Are we really giving them our Army, our Navy and our Air Force? They have not had that one for me, but they have got it from a lot of very careless stuff coming out of the EU itself, in which it is pretty well saying that it is going to get so much co-operation from us post remain that they will effectively have control of our Armed Forces and our own security and intelligence services as well. If you ask around and say, “What’s the answer to this?”, the official answer from within government is, “It’s rubbish, of course it couldn’t happen. We shall still be in NATO and we have the protection of NATO”. But people out there have seen that one coming and they have an answer for it. “No”, they say, “if we go into it with NATO then Europe will say, ‘Goody, we’ve got NATO now’, but America will look across and say, ‘If you’re going in with the EU defence and taking your NATO connection with you, we’re out of NATO, and, by the way, we’re out of Five Eyes as well. You can’t do that on the side’”.
All of this would coincide with a lot of the stuff coming out from Madam von der Leyen and her successor in European defence. They ran a conference in Munich in the spring of this year at which they said, “Look, all of this started with the Maastricht treaty. We said we were going to do this and we said we’d have it done by 2019-20. We’re nearly there. Now we’re going to be able to do this once we’ve got past discussion with the UK and we shall go into 2019-20 with everything that we’ve ever wanted”. They are standing on a platform saying this and Mrs von der Leyen or her successor is saying, “And it’d be lovely to have two such beautiful aircraft carriers”. Oh yes, that will go down well with the British public. Then, who is standing beside her but a former Prime Minister of this country? He is not showing dissent, but he is not showing assent either, but what a presence to put on the platform at that time. This has a profound effect. The public out there want to know.
I have a big suggestion to make to the Government, whether they stay, go or whatever they are going to do. They should issue a definitive statement on these two contentious issues and say categorically whether, as the pubic clearly suspect, they have done a private deal with the European Commission to relinquish control of our Armed Forces and our intelligence services. If they have not, they should say categorically that they have not: there is no binding issue which could be triggered post Brexit or if staying on a remain basis or anything; it is simply not an issue. Otherwise, it is going to be a running sore which will disrupt and destroy anything that the Government were going to do on the subject.
I return to my original point about the need to restore our sovereignty. It is the one great unanimous issue. There is no longer a population out there saying, “We want to take back control”. They are saying, “We want our sovereignty back”. They are saying it in every nook and cranny in our national debate. We should not be in doubt: we cannot do anything—either Brexit or remain—without cracking those problems. I thank noble Lords for their time and wish them well in the rest of the debate.

Lord Empey: My Lords, yesterday in this Chamber, as reported in Hansard, in answer to the noble Lord, Lord Wigley, the noble Lord, Lord Duncan of Springbank, said:
“It is not the intention of this Government to have Northern Ireland treated any differently from any other part of this, our United Kingdom”.—[Official Report, 1/10/19; col. 1622.]
Will the Minister stand over that statement when he winds up this evening? I do not know how he can, because the document that has just been circulated to us before this debate creates the very thing that most of us feared most: the border up the Irish Sea. If anybody doubts that that is what this is, the Government says in paragraph 4 of this paper:
“The proposal set out in this note would see regulatory checks applying between Great Britain and Northern Ireland”.
There are border inspection posts or designated posts of entry as required by EU law. They talk about the boundary of the zone, the zone of regulatory   compliance governed by laws into which they have no say, because, of course, Northern Ireland would be in the single market and subject to its rules. Then we are supposed to go into a form of purgatory because this proposal would be that before the end of the transition period, and “every four years afterwards”, the UK will provide an opportunity for a democratic consent to these arrangements.
This would mean that all our subsequent political discourse at every election would be a row over this. While of course I, like every other Member of this House, will have to take time to read the document carefully, at first sight it looks worse to me than the last one, which was the EU withdrawal agreement negotiated by Mrs May. I am not surprised that the DUP Peers have scuttled out of the Chamber, because they set out their views here in one statement after another. Mr Dodds, their deputy leader, said that there would be no internal UK border in the Irish Sea. Now, we do not have one border; we have two borders. Then another colleague goes on to say that,
“there can be no arrangements agreed that compromise the integrity of the UK single market and place barriers, real or perceived, to the free movement of goods, services and capital between Northern Ireland and the rest of the United Kingdom”.
But there will be. They then say:
“We will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom”.
They also said:
“But not in relation to following the rules of the single market or the customs union for Northern Ireland as a generality”.
But not only will agricultural goods be covered; all products will be covered.
Then, of course, the travel correspondent of the DUP, Ian Paisley, says,
“Northern Ireland has not been designated some purgatorial relationship of neither being in or outside the EU but will be treated completely the same as every other component part of the UK”.
No. I just do not know at this stage how the DUP can even look in the mirror in the morning. The red lines that it drew up were that there would be no interruption in the integrity of the United Kingdom. That red line has been broken by these proposals without any doubt whatever.
Diane Dodds MEP said,
“There will be no internal trade borders within the UK”.
Yes, there will.
I had hoped tonight to put forward proposals that I believed would provide an alternative to the backstop. We could make it an offence for UK territory to be used for the transport of goods to the European market that are not compliant. We could indemnify the European Union were it to be the case that it was found that any goods slipped through and entered the EU. I also believe that on to the Good Friday agreement a cross-border body should be created, an additional one by treaty, involving the European Union, the Republic and the United Kingdom where that body would have a role in monitoring and policing the appropriate arrangements on the island.
We also find that these proposals mean that Her Majesty’s Government will allow the EU Court of Justice to administer EU law in Northern Ireland. That was another red line. Therefore, this requires very careful consideration and I am horrified—shocked—that anybody describing themselves as unionist would be not simply accepting but advocating a border up the Irish Sea. They are advocating, because they have signed up to this and they are promoting that, so they are advocating a border up the Irish Sea. I do not know how any unionist can possibly stand in front of the electorate and say that. It is an outrage, and people need to think very carefully where we are going with all of this. I accept what the noble Lord, Lord Tugendhat, said: the decision has been made and we should implement it, but there are ways and means and I really fear that this is not the way or the means.

Lord Robathan: My Lords, so after three and a quarter years, here we are again discussing Brexit. Actually, there are one or two new things to be discussed, such as this proposal that we have just heard and that the noble Lord, Lord Empey, has been talking about, but basically, there is nothing much that is new. The old arguments have been trotted out, so I will not disappoint the House and will repeat one or two.
Those who voted for a referendum, which I did not, who voted to implement Article 50, who stood on manifestos in 2017 promising to implement the results—
“no deal is better than a bad deal”,
it said in the Conservative Party manifesto—who promised to accept the result at the very beginning shame themselves by their obstructionism. I particularly single out the Liberal Democrats, although it is sad that there are only three here to listen.

Baroness Smith of Basildon: There are only four on your Benches.

Lord Robathan: There are only three Liberal Democrats here to listen to me. These people have avoided listening to me, but they went on for years about how they were campaigning for “a real referendum” on Europe, under Nick Clegg. Paddy Ashdown boasted that he called for a referendum on Europe in 1989 or 1990. Let me quote the late Paddy Ashdown:
“I will forgive no one who does not accept the sovereign voice of the British people … whether it’s by one percent or 20 percent”.
That was on the day of the referendum. Now, the Liberal Democrats have decided, “We will ignore the British people, ignore what they said, because we know better”, notwithstanding 10 years of campaigning for a referendum.
Why have we been called back? While we are here for a total of seven or eight days, we at least are discussing Brexit. Down the other end, an empty House of Commons has been discussing the Domestic Abuse Bill—a very important measure.

Baroness Smith of Basildon: The noble Lord says that it is an important measure, but he seems to be critical of what the House of Commons was discussing. I think he ought to be very careful where he goes with this.

Lord Robathan: As I was saying, it is a very important measure but, as the noble Baroness knows, the Second Reading is unlikely to proceed to law because we are likely to have a general election. I am not saying that it is not important, but there are not many people down in the House of Commons saying that it is important. The Commons is paralysed. It is a zombie Parliament—a dead Parliament, as the Attorney-General has said. We need a general election.
I am going to look at the judgments that brought us back here. I am not going to talk much about the Supreme Court judgment, although a little, but more about the judgment of 11 September. The Supreme Court talked of precedents, but there is none that I can see, unless we refer to the dictatorial monarchs of the 17th century: the Supreme Court judgment indeed refers to 1611.
On 11 September, the Lord Chief Justice, the noble and learned Lord, Lord Burnett, together with the Master of the Rolls and the President of the Queen’s Bench Division said:
“It is not a matter for the courts”.
I am going to quote extensively from that judgment and from Lord Bingham, who was highly regarded and described as the outstanding lawyer of his generation. The judgment of 11 September said:
“The refusal of the courts to review political questions is well established”.
It quoted Lord Bingham saying:
“The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision”.
In another quote from another case, Lord Bingham said that,
“matters of potentially great importance are left to the judgment … of political leaders (whether and when to seek a dissolution, for instance) …Where constitutional arrangements retain scope for the exercise of political judgement they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude”.
The judgment went on:
“Almost all important decisions made by the Executive have a political hue to them”.
In another case—this was only four years ago—the noble and learned Lord, Lord Neuberger, Lord Sumption and Lord Hodge said:
“The issue was non-justiciable because it was political”.
The judgment went on:
“The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political”.
Surely, we all agree with that. It says in paragraph 64:
“The constitutional arrangements of the United Kingdom have evolved to achieve a balance between the three branches of the state; and the relationship between the Executive and Parliament is governed in part by statute and in part by convention. Standing Orders of both Houses elaborate the procedural relationship between the Executive and Parliament. This is territory into which the courts should be slow indeed to intrude by recognising an expanded concept of Parliamentary Sovereignty”,
and it concludes that,
“the decision of the Prime Minister to advise Her Majesty  the Queen to prorogue Parliament is not justiciable in Her  Majesty’s courts”.
I do not think anybody would disagree that politics and Parliament are not just paralysed; I fear that we are now despised because of our failure to respect the referendum result. The Supreme Court, I regret to say, has trespassed into politics and that is a very dangerous route down which to go. We have on the one hand three distinguished judges—the Lord Chief Justice  et cetera—backed up by Bingham, Sumption and others, who thought that it was dangerous. In what  is a febrile, heated and angry atmosphere, many are wondering why—because nobody can understand it —11 distinguished lawyers in the Supreme Court can completely contradict these other three distinguished lawyers beforehand. Some are wondering whether the Supreme Court has become part of an establishment remainer plot. As it happens, I do not think so and believe absolutely in the rule of law but—

Noble Lords: Oh!

Lord Robathan: I hear the Liberal Democrats laughing. I hope that they are going to pursue their policy even further, because that will lead them to the same result they had in 2015.
The increasing interference of courts is taking us to a continental system. Nobody asked for it; nobody has voted for it. It has been exacerbated by the ECHR being incorporated into law and by the creation of the Supreme Court. I agree with the Lord Chief Justice and not with the Supreme Court. To this House of unelected, unaccountable, privileged Peers, I say again that our whole political system is discredited. We need to leave on 31 October to get the poison out of our political discourse.

Lord Haskel: My Lords, I would like to get back to basics because next week I have a birthday: a birthday that places me firmly in the generation that looked to the idea of a European Union as a means of maintaining peace in Europe, the rule of law, free liberal democracy, mutual respect and collaboration through economic renewal and progress. Yes, we were idealists then. However, this view has gradually became dated and replaced by people saying, “Let’s go it alone and control our own borders—have freedom to make up our own rules and regulations, and to trade with anybody we wish”. We now know that this has divided the country. It has divided us into those who are determined to leave, whatever the cost, and those who are alarmed and concerned about the cost and disruption and seek to minimise it. I belong to the latter group. Why? It is because of the size, the cost, the enormity of the disruption and the time it will take to adapt. All these things cause me great alarm.
In spite of all the assurances of a smooth exit, I think the Government have become alarmed too. They are desperately trying to prepare for the disruption through a whole ornithology of studies. We all know about Yellowhammer and the emergency plans to deal with the disruption of supplies but there is also Snow Bunting, which deals with the preparations the police have to make in the event of social disruption. Then there is Kingfisher, a scheme to save companies from collapse, presumably with financial support; and Black  Swan, a picture of worst-case scenarios. Yellowhammer has been published in all its worrying detail. Will the Minister publish the other reports, or are they just too worrisome to contemplate?
There is yet more to worry about, such as Operation Brock and the disruption to ferry and road traffic that can be caused by delay or non-compliance. Yesterday, we heard about the dangers to health in losing access to food safety alerts. We know about the threats of violence to our politicians, particularly women. We know that civil servants too are being targeted, with one party leader accusing them of not doing a neutral job. What is the name of the bird that will help to protect our politicians and our civil servants from these pressures, so that they can properly carry out their tasks?
We in Parliament also have a considerable task. On 5 September in the Commons at col. 394, the leader of the other place said that there were 580 statutory instruments which have to be approved by Parliament so that no agreement would “happen smoothly”. He indicated that some 200 were in progress. Can the Minister tell us how many instruments still have to be scrutinised or debated, and will he ensure that none of them will be debated or scrutinised after they come into force?
We were promised a whole range of new opportunities. Perhaps the Minister can tell us what these opportunities will be when we leave the EU, with or without an agreement. The Chancellor of the Exchequer could not tell the Conservative Party conference. All he could do was to ask people to identify EU regulations that we can improve or remove—a kind of Red Tape Challenge. Is this really the best that the Government can do? If it is, fairly soon even the Brexiteers and the Government’s own supporters will turn on them.
Now that all these difficulties, problems and costs are apparent, I ask the Minister: do we really want to inflict them on ourselves? Do we really want to have years of uncertainty in grappling with the consequences, known and unknown? Surely, now is the time that people deserve a chance to think again, as any sensible person would do. Indeed, when I compare this scenario with the one that I described all those years ago, it does not seem dated to me now. The opportunity to think again would be an excellent birthday present next week.

Baroness Meyer: My Lords, the Prime Minister is right: we need to get Brexit done. The longer the delay, the more divided we will become—if that is even possible. Last week, bloodletting in the other place plumbed new depths of acrimony and abuse. It was shocking, but hardly surprising. After three years of deadlock, remainers and Brexiteers have become more and more entrenched in their positions, allowing anger and resentment to replace reasoned debate.
Meanwhile, the frustration of our voters at Parliament’s inability to honour its commitment to the referendum result grows by the day. We have reached such a point that many outside the Westminster bubble no longer care whether we leave with a deal, without a deal, or with just half a deal. Surely the European elections  were warning enough. Yet we appear to have learnt absolutely nothing from the dramatic success of the Brexit Party. Our heads are deep in the sand. This is how revolutions—like the one that destroyed my Russian family—begin. It beggars belief that, three years and three months after the referendum, Brexit remains undelivered. At the time of the last extension, President Tusk urged us to use the time well. Can we honestly say that we have done so?

Lord Wallace of Saltaire: No.

Baroness Meyer: Exactly. Brexit delayed is Brexit denied. Yet, with the latest deadline looming, Members of this House and the other place are scheming, yet again, to frustrate the wish of the majority of the British people and to undermine the Prime Minister’s determination to deliver Brexit—and, may I say, with a deal; that is what he trying to do. This plotting is as calculating as it is unworthy. It is, to quote Sir John Major, “political chicanery”. This is not a struggle between two types of democracy: parliamentary and plebiscite; it is a blending of the two. It was Parliament itself that agreed the referendum, undertook to implement it and, by a thumping majority, voted to trigger Article 50. Because it makes Brexit more difficult and revoke more likely, the Benn Act is, in reality, a distortion of parliamentary democracy, not its triumphant assertion.
As for negotiation, to rob the Prime Minister of the option to walk away from the negotiating table is self-defeating madness. It is like playing the Wimbledon finals with a hole in your racquet. We have to ask the question: what is behind this Westminster scheming to get another extension of Article 50?

Baroness Hayter of Kentish Town: Would the noble Baroness agree that it is in fact like trying to play the finals while threatening to walk off if you do not win the first round?

Baroness Meyer: I could not agree with that because, if the Prime Minister is to be able to negotiate, he needs to know that his Parliament and this country are behind him. It is the only way to negotiate—if you play poker and you show your trump card in advance, how can you negotiate?
What is behind this Westminster scheming to get another extension of Article 50? We are told that it is to avoid a no-deal Brexit, however that may be defined. In reality, no deal covers several outcomes, none of which can be described as “crashing out”. The plain truth is that we cannot predict with any certainty the economic outcome of Brexit—whichever form it takes—for this country or for the European Union, because this has never been done before. There have been scores, maybe hundreds, of predictions and analyses. For some, no deal is the deepest pit of hell, for others the promised land. Not for nothing did Thomas Carlyle call economics the “dismal science”. I experienced that personally when I worked in financial services. Today, our crystal balls are cloudier than ever.
Some will say that the delay should be used for a second referendum—I am beyond my time, I speak too slowly. This is often wrapped in the pious hypocrisy  of a “people’s vote”. But can we do this again? Does anybody in their right mind want to go through that again? I need to finish, because my time is up.
There are other people trying to revoke Article 50. I never thought I would say it, but we must be grateful to the Liberal Democrats. Their leader has given the game away by saying that if we were to vote leave in a second referendum, she would refuse to implement it. At least she has had the decency to come clean and persuade her party to support revoke. We need to move on; we need to try to come together and support the Prime Minister, who is trying to get a deal.

Lord Wigley: My Lords, for once we have a debate that is timely, following as it does so quickly in the wake of the Prime Minister’s conference speech and indeed the publication of the documents delivered this afternoon to Brussels. Having said that, one really must ask whether the “take it or leave it” approach is a basis on which to secure the mutual trust that is essential if we are to achieve a harmonious relationship with our European neighbours.
I have quickly read the documents published today and, however they are dressed up, these proposals will place Northern Ireland in a different relationship with Europe to that of Britain, as the noble Lord, Lord Empey, noted a moment ago. The reality is, if the UK is outside a European customs union area and the Irish Republic is inside that customs union, there will inevitably be a border between the north and south of Ireland. There are only two ways of avoiding this: first, if both the UK and the Irish Republic remain in a customs union—and that could of course still be possible even if the UK ceases being a member of the European Union—or, alternatively, by the reunification of Ireland. This is an option that, in our many Brexit debates, we have skirted around. Now, following the Johnson ultimatum, it cannot be avoided. It would be subject of course to the endorsement of the majority of electors in both the north and the south. The world of politics is full of unintended consequences, and  one such example is that Brexit may lead to a united Ireland.
Those Members of this House or another place who still advocate or concur with a no-deal Brexit must face this reality: their course of action may well lead to the end of the United Kingdom in its present form. Such constitutional change could well accelerate Scotland’s departure from the union, which would then confront Wales with a fundamental decision on our future as well. Noble Lords might imagine that such a scenario would have its attractions for me, as  an advocate of maximum Welsh autonomy. But let  me make it quite clear: it does not. The maximum independence for our respective nations must be within a framework of the free movement of people, goods and money. Such a framework is provided by the European Union, providing free movement for its  28 member states. That is one reason, though not the only reason, why I so strongly support the UK remaining in the European Union.
The Prime Minister could have announced today that he was willing to compromise and interpret Brexit as being delivered within a framework that would  permit the ongoing free movement of people, goods and money between the UK outside the EU and Ireland within the EU. That would implicitly mean free movement with the whole of the EU. Had that been so, I too would have been willing to compromise—as, indeed, Plaid Cymru did when we accepted the joint White Paper published by the Welsh Government in 2017 on that matter and along those lines. But Mr Johnson will not compromise, so those of us who wish to retain such links with our continent cannot retain confidence in this Government. That lack of confidence is reinforced by the determination of Mr Johnson to leave the EU without a deal if no agreement is achieved by 31 October. Crashing out in this way would be economically devastating for Wales, as many noble Lords have argued many times. I shall not repeat those arguments, although I note today with interest that Northern Ireland is being offered a new deal while Wales is not.
The Prime Minister once again today indicated that he will not ask for the 31 October cliff edge to be delayed in order to secure a deal. In taking such a stance, he is specifically refusing to respect the legislative revisions endorsed by this Chamber. If in two weeks’ time there is no agreement with the EU and no undertaking to extend the Article 50 date, then MPs must surely vote no confidence in Mr Johnson and his Government. I hope they do so and follow that with a resolution of the House indicating their support for another senior MP, be that Kenneth Clarke, Margaret Beckett or whoever, to head a cross-party Government to sort out this whole sorry saga. The Speaker could convey the name of that person to Her Majesty the Queen, even if the Prime Minister were unwilling to do so. That new Government should then move rapidly to reach a compromise deal with the European Union which involves rethinking our customs union relationship with our continent.
I realise that such a version of Brexit will not be acceptable to all Brexiteers; but neither is a no-deal Brexit acceptable to all leave voters, let alone all remainers. That is why there must be a confirmatory referendum in which the Brexit proposed by the cross-party Government is tested against the status quo. Such a binding referendum could then be held early in the new year, allowing Brexit to be finally resolved by March. That would enable an election to follow in May with the Brexit issue resolved and every party able to address the pressing social, environmental and economic problems facing these islands. I appeal to MPs of all parties to reject the Boris bluster and replace him with a Prime Minister who will respect the legislation on the Brexit timetable and allow us to find a consensus way forward.

Viscount Trenchard: My Lords, it is always a pleasure to follow the noble Lord, Lord Wigley, although I regret that what I have to say will not be to his liking.
I thank my noble friend Lord Callanan for introducing this debate. I am not a lawyer, but I am surprised that the learned justices of the Supreme Court ruled as they did last week. It seems to me that they have changed the constitution by their decision that the  Prime Minister’s use of his prerogative powers in advising Her Majesty the Queen to prorogue Parliament was justiciable, contrary to the opinion of the Lord Chief Justice and the Master of the Rolls. Their justification seems to be based on their opinion that the effect of prorogation upon the fundamentals of our democracy was extreme. However, prorogation reduced the number of sitting days by only three days from what was anyway scheduled. Furthermore, both your Lordships’ House and another place had clearly passed the decision on Brexit to the people to decide by referendum, promising to carry out their decision. I believe that those responsible for the passage of the surrender Act, and indeed the Cooper-Boles Act, have had a much more extreme effect on our democracy.
I agree with the Government that it would be much better to leave the European Union with an agreed deal, providing a transition period to the end of next year. However, those who have tried and continue to try to take no deal off the table have done the country a gross disservice by seriously weakening our negotiating position. I wholly agree with the Prime Minister that it is time to get Brexit done and move on. We have already postponed our departure from the EU twice, at considerable cost to businesses and unnecessarily prolonging uncertainty. The surrender Act significantly reduces the incentive for the EU negotiators to show flexibility in revising the withdrawal agreement to one that might find support in another place. I commend the work of the Alternative Arrangements Commission, whose report published in July has, I believe, assisted the Government in putting forward the very reasonable proposals put to Mr Juncker today.
I was in Japan earlier this month and was able to discuss the current situation with several senior politicians, civil servants and businesspeople. They are, of course, concerned about the potential disruption to trade between the UK and Europe. However, the Japanese Government very much want the UK to use its regained freedom in trade policy to accede to the Trans-Pacific Partnership, or TPP. They want us as a member not only because we are the one country most likely to spur the United States to reconsider its decision to withdraw; they want us there in our own right as a G7 economy committed to furthering a global trading system based on competition and free markets, where nation states are free to adopt regulatory regimes that suit their own needs and priorities based on mutual recognition and equivalence of outcomes, rather than state-led harmonised regulation, with excessive reliance on the precautionary principle, as increasingly adopted by the EU.
Six of the 11 members of the TPP are Commonwealth countries, including Australia, Canada, New Zealand and Singapore, and the Governments of those countries have all also shown support for UK accession. The negotiations with Japan on an FTA and on the TPP could be a single-pocket negotiation. While shackled to the EU’s customs union and single market, we would not be able to join the TPP or enter into any other FTAs. I welcome the new Government’s policy of seeking a trading relationship with the EU which is as frictionless as possible, given our absolute requirement to be free to develop our independent trade policy.
I give the example of a major Japanese pharmaceutical company whose CEO I have known well for nearly 40 years. When Brexit came along, he was initially upset and disappointed; it has cost his company some $8 million to strengthen his EU-based companies and obtain the necessary licences from the European Medicines Agency, requiring some duplication with the group’s UK companies. Now he is confident, deal or no deal, that he can research, develop, manufacture and distribute medicines in the UK and in the EU 27. Now he wants the upside of Brexit. His expectation is that the UK will move to a more innovation-friendly regulatory system, which means divergence from EMA rules. He is confident that if the UK will do this, it can remain the best place in the world for a life sciences company such as his to research and develop new therapies and medicines. However, noble Lords opposite and, indeed, some of my noble friends are determined to ensure that if Brexit takes place at all, it should be only a very soft one whereby we remain under the EU’s trade policy control and have no say in new laws that it brings in as it moves to further harmonise and expand its competences at the expense of its member states. Your Lordships’ House has even passed an amendment to the Trade Bill to require continued adherence to EMA rules and oversight after Brexit.
There is no point at all in being half in and half out of the EU. I strongly believe that the way to maximise prosperity for our country and all its people in future decades will be to get Brexit done on 31 October, as the Prime Minister promises to do.

Lord Judd: My Lords, I am very grateful to the noble Viscount, Lord Trenchard, because he has tellingly spelled out to me why I feel so strongly on the issues before us. Of course, they are not simply about Brexit; they are about a committed bunch of people determined to change this country into a deregulated authoritarian state akin to something in south-east Asia, unencumbered by all feelings of responsibility, nationally or internationally, to hold them back. That is a ruthless economic model, and that is why a stand at this juncture is crucial.
A great deal has been said about Ireland in this debate. I have watched the affairs of Northern Ireland and touched on them to some extent in past ministerial experience with great interest. The Good Friday agreement was not the end of the story. It was not a settlement. It was an opportunity for Northern Ireland to rebuild itself as a different kind of society, free of violence. I take my hat off to the countless people in Northern Ireland who have worked for that. It is not just the people who hit the headlines; it is all the people at local and community level who have been steadily transforming the whole nature of Northern Ireland.
That is why the issues of Northern Ireland are crucial and central to our responsibilities. What has been very important in the change in Northern Ireland has been the sense of equivalence. Instead of having all the British traditions, the minority was supported by the concept of the European Charter, which spells out the rights that were so important to all the community. Of course, we decided not to endorse the charter for the future. That means that we have a double responsibility now to make sure that we get it right.
I have argued all my life that in many ways an unwritten constitution is stronger than the written constitution, because it represents what is acceptable to the broadest possible cross-section of political players in society, but also to society as a whole. I have begun to question my position on this, because it depends on the players respecting the consensus as it has emerged. At the moment, we are being encouraged to sweep that consensus to one side in favour of the narrow objectives of the present Administration.
I have therefore come to the conclusion that indeed we must have a second referendum, because we must be able to say to the people, “Is this what you want?” on anything we may have been able to negotiate, or, “Would you prefer to remain part of the European Union?”. I have many misgivings about going down that road, but if you have misgivings, you must decide in the end what is necessary, and I have decided in the end what is necessary.
My misgivings are that I think that referenda have been amply demonstrated to have absolutely no place whatever in a parliamentary representative democracy. In a parliamentary representative democracy, we the representatives of the people—particularly in the other House, of course—are here to do what we believe to be right and appropriate and then give account to people in a general election. If we say, “Oh, on this issue the people will decide”, and then tell the parliamentary representative democracy that its job is simply to implement what the people are saying, that is a denial of the whole concept of the responsibility and integrity that has gone into our parliamentary system in the past. We should be very careful not to go down the road of referenda ever again—but, having said that, I think that on this occasion there is no alternative.
I remain with this thought: whatever happens in this story, whatever the end of the road, a certain fundamental truth remains for Britain. It is the prototype of a nation dependent on its relationships to the world. How on earth does the vindictive wartime rhetoric that we are getting from the Government help us to build relationships with the world? How does it lead the country to understand its interdependence with the world and the fact that our future stability and prosperity in every sense depend on us being positive players together with people across the world, starting with our European neighbours, as a way of ensuring the well-being of our children?
I find this a tragedy. Everything is going into a negative, psychologically manifest, insecure approach, which is saying, “Oh, the world is a threat. Europe is a threat. There are opponents; we must defeat them”. That has no place in any sensible sense of responsibility to our children.

Lord Hamilton of Epsom: My Lords, I am glad to have listened to the noble Lord, Lord Judd, and I thought for one brief moment that I was going to actually agree with him on something, because he said he had growing reservations about our unwritten constitution—but then that took him off to saying there should be a second referendum. I do not quite follow that one.
I will talk about the judgment of the Supreme Court and the noble and learned Baroness, Lady Hale, which is remarkable on two counts. The first is that it was unanimous. All 11 judges on the Supreme Court reached the same conclusion, when we all know that the judiciary is totally divided on this issue. Does this not raise slight questions in people’s minds as to how they came to a unanimous conclusion when the previous court, the Divisional Court, had voted the other way? They overturned the verdict of the Lord Chief Justice of England and Wales and the Master of the Rolls. Was it not rather strange that they should reach a unanimous verdict when so many other very distinguished judges across the country had decided the other way?

Lord McNally: What is the noble Lord implying? He should not just put a question mark up. The clue as to why there is a difference is in the name “Supreme Court”. Why does the noble Lord think all 11 came to the same conclusion? By raising it, he is implying that there must have been some collusion or malfunction. Why ask the question without giving us an answer?

Lord Hamilton of Epsom: Because I do not know what went on in the previous discussions of the Supreme Court; I was not there. All I am saying is that it is very strange that the conclusion the court came to was completely unanimous. This is very odd.

Lord Goldsmith: Perhaps I could help the noble Lord. The Supreme Court judges said they were all of the opinion that parliamentary sovereignty was what was at stake. As they made very clear, they were not taking a decision for or against Brexit. They were talking simply about the role of Parliament, and how wrong it therefore was for the Prime Minister to stop Parliament sitting. I do not see any difficulty at all in seeing why they all took that opinion. I entirely agree with the noble Lord, Lord McNally. To suggest something improper about our Supreme Court, as the noble Lord was, is absolutely inconsistent with the rule of law and the role we should take.

Lord Hamilton of Epsom: The noble and learned Lord, Lord Goldsmith, is putting words in my mouth. I did not say anything improper. I just said that, considering the judiciary is completely divided on this issue, it was remarkable that all 11 members of the Supreme Court reached the same conclusion. The issue at heart was whether the business of proroguing Parliament was judiciary. The previous court had said it was not judiciary and the Supreme Court said it was. What has actually happened—

Lord Wallace of Tankerness: Will the noble Lord give way?

Lord Hamilton of Epsom: No. I have given way to so many people, and we are always being told that we cannot go beyond six minutes.
As everybody will know, the judgment of the Supreme Court alluded to the fact that a number of judgments had been made that had political connotations. This  is a step much further: the Supreme Court making  a political decision. What has the judgment that we   could not prorogue Parliament actually resulted in? We have sat for another eight days while we go over all the old ground. One of the reasons we are where we are now is that Parliament is incapable of reaching any conclusion on what it should actually do about leaving the EU. Have we advanced any further by the fact that we have sat for longer? No, we have not. Have the Government been held to account? Well, on the margin, I suppose. Has it really made any difference to anything? No, it has not—for the simple reason that nothing is actually going to happen until the EU Council meets on 17-18 October. After that, of course, it will be decided whether the proposals we have put forward are acceptable, whether there is a deal to be put to Parliament and so forth. It is after the Queen’s Speech that the Government will have to be held to account, and very little has been achieved by Parliament sitting over all these extra days.
The real problem is that if the Supreme Court says, “We’re going to get into the business of not just interpreting but actually making the law, and we’re going to make political decisions when we do that”, as sure as night follows day, Parliament will say, “If the judges are going to make these political decisions, they must be appointed by Parliament”. That is what will happen if we go on down this road. What will happen? A Select Committee in the House of Commons will interview candidates for the Supreme Court. It will ask them about their political views: which way they voted in the last election, what their views are on social matters such as—

Lord Marks of Henley-on-Thames: My Lords—

Lord Hamilton of Epsom: No, I am not going to give way any more. I have given way endless times, and it does not seem to be taken into account when I am gone after.
That is what will happen. They will be asked about all these things, and we will move over to an American system whereby when there is a Conservative Administration a lot of conservative judges will be appointed, and when there is a Labour Administration a lot of socialists will be appointed. Is that what we want? No, it certainly is not. We do not admire the American system of having politicised judges and a politicised Supreme Court. It would be a very retrograde step.
I am not taking any notice of my noble friend on the Front Bench. I have had so many interventions that I will have to speak a little longer. We are between a rock and a hard place. If we have a written constitution, we will have to completely review the role of the Commons versus the Lords and the relative powers of the two Chambers. We will have to look at the Commons versus the Executive and the role of the Speaker. We will have to look at the judiciary as well. I was rather hoping that the noble Lord, Lord Judd, would reach the conclusion that we should move from an unwritten constitution to a written one. That is the only way that we will save the institutions of this country. Too many people are trying to push the boundaries of a system that has built up over the years and we are now moving into very dangerous territory indeed.

Duke of Wellington: My Lords, I declare, as always, my European interests as detailed in the register. This is the first opportunity I have had to speak in this Chamber since I resigned the Conservative Whip on 4 September, and I feel I ought to explain why I did so.
When the Prime Minister advised the early prorogation of Parliament, I felt, in the words of the noble Lord, Lord Young of Cookham,
“unhappy at the timing and length of the prorogation and its motivation”,
and,
“unpersuaded by the reasons given”.
A few days later, the Commons voted to allow the so-called Benn Bill—which requires the Prime Minister to request an extension in the absence of a deal—to  be debated. I know I would have voted with the 21 Conservatives who supported the Motion and enabled it to pass. Those 21 had the Whip removed and were expelled from the parliamentary party. As a result, I felt that the only honourable course open to me was to resign the Whip in this House.
As we all know, the Prorogation was subsequently declared unlawful by 11 to zero by the Supreme Court. How unfortunate that it was a Conservative Prime Minister who should have acted in this way and broken a convention of this nature that had lasted for so long.
The ultras and certain newspapers regularly accuse those who do not wish to leave without a deal, or who try to prevent the country leaving without one, of not accepting the result of the referendum. This is simply not true, and I must repeat what I have said many times before. In the referendum I voted to remain. I much regret that by a small percentage the country voted to leave. In their 2017 general election manifestos both major parties committed to honour the result of the referendum. Since then, I have been of the opinion that, regrettably, we must now leave the European Union. However, it would not be in the national interest to leave without a deal, with all the serious consequences this would have for the economy, for small businesses, for farmers, for the supply of medicines, for security, for investment and for the union. The list goes on.
I sincerely hope that the Prime Minister will be able to negotiate a deal in the next two weeks and get it agreed by the European Council and by Parliament. Should he be unable to do so, he must by law and in the national interest seek a further delay, frustrating and disappointing as that might be. We cannot and must not leave without a deal.
Once a delay has been secured, if that is necessary, it would surely be expedient to have a general election. If the current House of Commons is unable to support Mrs May’s deal—which I would have voted for, and I would vote for any new deal brought to this House—and as the Government no longer have a majority in the Commons, we must have a general election. Then it will probably be desirable for the next Parliament, however it is made up, to repeal the Fixed-term Parliaments Act. For centuries it has been more than a convention that a Government who do not have the  confidence of the House of Commons resign and call an election. I should add here that I am still not persuaded of the merits of a second referendum.
Even if the Prime Minister secures a deal at the next European Council, I fear that an extension might still be necessary to enable the parliamentary procedures here and the ratification by the European Parliament in Strasbourg to take place. I am glad that Parliament is sitting this week and that we are having this debate today.
We should all hope that the Prime Minister, with his clear determination, is indeed able to negotiate a new deal. But should he fail, there is no doubt that we must seek an extension. I wish him well in the negotiations and I hope, with limited conviction, that he can achieve a new deal.

Lord Wallace of Saltaire: My Lords, we are now in the endgame of Brexit: less than four weeks to go, a choice between crashing out, staying in or some sort of ingenious or fantastical deal over the Irish border.
The Lords, we all accept, is a revising Chamber. We look at the detail of what the Government propose and whether it is workable. Some noble Lords have spoken of the referendum three years ago giving “instructions” from the British people to Parliament, but those instructions did not go into any detail. They did not tell us whether “the people” wanted to maintain co-operation between police forces and exchanges of data on crime and terrorism, and they did not tell us whether the UK should stay in the European space programme or the Joint European Torus on fusion research.
Boris Johnson spoke this morning of the JET Culham research campus as a British asset, but there is a reason it is called the Joint European Torus, and it is not clear yet whether we are planning to shoulder its full cost and staffing ourselves. It is in the Henley constituency and it has a European school. He was deliberately misleading his audience.
The Prime Minister, we know, is not a details man. He showed his eccentric and limited grasp of the details of trade policy in a speech in New York last week, which I happened to catch on television. In it he took as his prime examples of UK exports that would benefit from deregulated access to the US market four items: socks, cauliflower, haggis and lamb. The Minister must be familiar with the research behind this statement. Can he therefore tell us what proportion of UK exports is currently composed of cauliflowers, what scale of expansion in domestic cauliflower production is envisaged, and how easy it will be to supply cauliflowers to California while they are still fresh? I had understood that the UK was at present a net importer of cauliflowers and that it produces them for only one month a year. However, the Prime Minister must understand the sector much better than I do, since he placed more emphasis on that than on high technology, the creative industries or services.
In his update last week, the Prime Minister accused Parliament of living in a fantasy world. I see Mr Johnson and the noble Lord, Lord Callanan, as living in an alternative universe. They and their allies told us three   years ago that negotiations with the EU would be quick and easy. They also said that the eurozone was about to collapse, that staying within the EU would leave us “shackled to a corpse”, and that the EU was a “superstate” over which we had no influence.
Now Dominic Cummings says that leaving without a deal will be “a walk in the park”. Mr Johnson says, “Let’s get it finished”, as though there will be nothing more to negotiate after 31 October and no more financial contributions to shared European programmes. Several speeches in this debate have clarified that Britain’s future relationship with the EU remains to be negotiated, in principle and in detail. At best, we  will find ourselves a second and poorer Switzerland;  at worst, an offshore island like the Irish Free State 50 years ago.
I listened to the Prime Minister’s conference speech this morning. He has a wonderful sense of comic timing—he would have had a successful career as a stand-up comedian. However, he wears his principles lightly and he happily propounds contradictory statements one after another. His best comic line was entirely nonsensical, and I think that I ought to quote it:
“When the chlorinated chickens waddle from the hencoop where they are hiding, that is the vision of the country that we will put to the people”.
I am sure that that is entirely clear to all noble Lords present. For me, the worst contradiction was between his declaration—“I love Europe”—and his use of the language of war to describe our relations with the continent.
After the referendum in 2016, Boris Johnson wrote a column for the Daily Telegraph that claimed that Britain would remain in the EU single market after Brexit. Reportedly, that was one reason that Michael Gove decided that, as he then declared,
“I have come, reluctantly, to the conclusion that Boris cannot provide the leadership or build the team for the task ahead”.
Gove was right then, as was Johnson, but both changed their minds.
We have heard some of the wilder interpretations of our difficulties with Brexit in this debate, which remind me of the overlap between Brexit believers, climate change deniers and other conspiracy theorists. The noble Lords, Lord Lilley and Lord James—I do not see the noble Lord, Lord Lilley, in his place at the moment—clearly see the EU as an evil empire, although the noble Lord, Lord Lilley, prefers to define it as the Soviet Union rather than the usual depiction of it as the German Empire. The noble Baroness, Lady Meyer, ascribes the lack of progress with Brexit to “scheming and plotting”—by, I assume, malign forces in Parliament and elsewhere. The noble Lord, Lord Hamilton of Epsom, even suspects a deep judicial plot.
As several noble Lords have said, we are also straining Britain’s constitutional settlement. On the “Today” programme this morning, the Conservative Party chairman, James Cleverly, said:
“There is little point in electing representatives unless we listen to them”.
I cheered up immensely. However, he was actually referring to the DUP and not the UK Parliament. As far as the UK Parliament is concerned, the Prime  Minister is whipping up the populist theme of the people against—I assume, an allegedly corrupt—Parliament. That is very dangerous for British democracy. Democracies can die if political leaders cease to defend their principles. Democracy is not just about voting but about the rule of law, respect for an ordered political process, freedom of speech, the toleration of dissent, and limits on and careful legislative scrutiny of executive power.
When the Attorney-General declares, “This is a dead Parliament”; when the Daily Mail declares that the Supreme Court’s recent judgment saw democracy begin to die, as it did the other day; and when the Prime Minister describes an Act of Parliament as the “surrender Act”, we are drifting on to very dangerous ground.
The Minister may remember the Queen’s Speech of two years ago, which set out an ambitious legislative agenda to prepare for an orderly Brexit. Of the list of Bills then produced, the taxation Bill passed, as did the Nuclear Safeguards Bill and the Sanctions and Anti-Money Laundering Bill. The Trade Bill has gone through both Houses and is waiting for ping-pong. The immigration, Fisheries and Agriculture Bills are still waiting for Commons Report stage. As Jacob Rees-Mogg admitted in the Commons last week, fear of amendment has led to government delay.
This means that—although the Minister may try to assure us that the necessary legislative framework will be in place for the UK to leave on 31 October—that can happen only if the Government are given Henry VIII powers to put through a very large number of statutory instruments to allow them to push a massive legislative programme through in two weeks; otherwise, we will not be ready and will need to extend.
This week, the Mail on Sunday headlined allegations from “a senior Number 10 source”—in other words, close to the Prime Minister—that:
“The Government is working on extensive investigations into Dominic Grieve, Oliver Letwin and Hilary Benn and their involvement with foreign powers and the funding of their activities. … The drafting of … legislation in collusion with foreign powers must be fully investigated”.
Later in the article, Philip Hammond’s name was added to this list of potential traitors. Number 10 thinks that three recent Conservative Cabinet Ministers have now gone over to the enemy.
The hostile foreign power with which the Prime Minister’s Office alleged that they were colluding was not Russia or China but France, an ally of the UK for more than 100 years. The Prime Minister’s frequent references to “our friends in Europe” presumably includes the French. But refighting the Second World War, for this pocket Churchill, makes him contradict the whole idea of friendship with our neighbours across the channel, through references to “surrender”, “traitors”, “betrayal”, even “the Dunkirk spirit” as the war is endlessly replayed.
We know that the Prime Minister likes to compare himself to Churchill. The press increasingly compares him to Trump: constantly campaigning rather than governing, dividing the country while talking of uniting it. Watching the Prime Minister’s update to the Commons last Wednesday, I thought more of the comparison  with Viktor Orban, the authoritarian Prime Minister of Hungary, who has coined the phrase “illiberal democracy”, by which he means democracy in name only, without the rule of law and without independent media. Like Boris Johnson, he started off as a social liberal. I even shared a platform with him at a conference in 1997 when he was seen to be one of the rising liberal modernisers in eastern Europe. But then he discovered that appealing to nationalist resentments, attacking the European Union, sneering at intellectuals and demonising immigrants whipped up public emotions and consolidated his hold on power.
On the Conservative Benches behind the Prime Minister last Wednesday, Brexiter MPs were attacking the “liberal establishment” as the core of the alleged parliamentary plot to thwart the will of the people. The liberal establishment, as I understand it, includes the mainstream media—except the Telegraph, the Mail and the Express, but including above all, the BBC, of course—as well as experts of all kinds, the universities and the academic class, the churches, the judges and the Civil Service. That covers most of us present in this Chamber; it includes people who think, who have respect for evidence and who believe in reasoned debate. The populist right, which has taken over the Conservative Party, defines itself against this as the illiberal anti-establishment, speaking for the people against the elite. Noble Lords need only look at Jacob Rees-Mogg or Boris Johnson himself to see how ludicrous their claim to represent the people against the elite is.
I can think of two earlier instances of the Tory party losing its mind. The first was in 1687-88, when Tories supported the King against Parliament and patriots such as General John Churchill appealed to a foreign power—the Dutch—to invade Britain in what we now remember as the Glorious Revolution. The Tories at that point were supported, politically and financially, by the authoritarian French. The second instance was in 1913-14 over Ireland, when Tory politicians fanned the flames in Ulster, coming close to promoting civil war against the elected Government in Westminster. We were saved from that threat of civil conflict by the disastrous outbreak of the First World War. We have to hope that this third bout of madness will not lead to another such political, economic and constitutional disaster. We appeal to those reasonable Conservatives—followers of the one-nation tradition, from Disraeli to Macmillan to Cameron—to help us return British politics from right-wing populism to reasoned debate.

Baroness Hayter of Kentish Town: My Lords, my noble friend Lord Whitty confessed that he is going to weep on 31 October if we leave then. For myself, I have booked to see “Dracula”, the ballet, that night, which somehow seemed rather appropriate.
I am afraid I have to respond to the noble Lord, Lord Hamilton—and it is not just because I am wearing the Lady Hale tribute brooch. He asked what we have achieved by sitting for the extra days. The first thing is that we are able to be here today to discuss the proposals, which are incredibly important to this country, that were published at 3 o’clock this afternoon. The second outcome of that hearing is that it shows that  there is a limit to a Prime Minister’s authority—which is particularly important at the moment, when Cabinet fails to restrain a Prime Minister, knowing nothing either of that application for Prorogation or indeed of the publication of today’s proposals.
I will say one other thing to the noble Lord. When people do not like the outcome of a court case and start challenging the judges, it is a serious and dangerous matter, especially for a parliamentarian. It is we, above everyone else, who should reflect on and respect the separation of powers.
The Minister has some major questions to answer this evening. I urge him not to bluster or blag, because we are at too serious a time. First, to repeat the central question posed by my noble and learned friend Lord Goldsmith, we need to know whether the Government abide by the law—not just in general, but a specific law, the Benn Act. No ifs, no buts, no fingers crossed, he said, no early “please reject our request” or parallel letters. The Benn Act, as we have heard, does not reject no deal but simply says, much as the withdrawal Act requires a deal to be agreed by the Commons, that no deal must be approved by the Commons, or else, if there is no agreed deal, an extension must be sought. As the noble Duke, the Duke of Wellington, said, that is in the national interest, as well as in accordance with the law.
Can we avoid any nonsense about there being defects in the Act? It was passed through both Houses, which is when Ministers should have engaged to resolve any shortcomings, if they thought there were any, because it was quite obvious at the time that it was going to become the law of the land.
We should heed the wise advice of the noble Lord, Lord Butler, that, even if these new proposals are the basis for an agreement, it will not be possible by 19 or indeed 31 October. To take the Prime Minister at his words, today’s proposals are the “broad landing zone” in which a deal can begin to take shape. They are probably the basis of a deal, but not by 31 October. Anyway, as the noble Lord, Lord Cormack, suggested, that particular date is hardly sacrosanct, other than in the Prime Minister’s rhetoric. As the noble Baroness, Lady Altman, said, even Brexiteers never dreamed it was going to be 31 October on a no-deal basis.
So we must be clear that we will need the extension allowed for in the law of the land, as Parliament has decided, if it is not possible to have a deal by the end of this month. Will the Government clearly state that they will obey the Benn Act?
Secondly, to help the Commons decide whether to accept no deal, to help Parliament debate the issue, and to help the public understand its implications, the Minister needs to spell out the remaining costs and risks, after all possible mitigation, of a no-deal exit. What do the Government estimate it will cost UK plc, and particularly the UK citizens most immediately affected, either those living elsewhere in the EU or in Gibraltar? Given that either the EU Council or the European Parliament might not agree to these proposals, we have to continue to ensure that we do not leave without a deal. And we need to see the updated Yellowhammer assessment and the Black Swan papers mentioned by the noble and learned Lord, Lord Wallace  of Tankerness, and by my noble friend Lord Haskel. As my noble and learned friend Lord Goldsmith said, we need full, honest and frank advice about the consequences of no deal.
Thirdly, and crucially, on the “most sensitive land border in Europe”, in the words of the noble Lord, Lord Birt, will the Minister explain how the new proposals respect the December 2017 commitment—a commitment made, as my noble friend Lord Liddle reminded us, while Mr Johnson was in the Cabinet, and therefore party to the commitment? It was, as we know, to “no physical infrastructure or related checks or controls” within Ireland—but we now read that Mr Johnson is proposing that there will be checks. Indeed, in some ways it will be an effective double hard border, with checks on both sides of the frontier—albeit a few miles away, presumably to honour his commitment—for any goods travelling between the north and the south.
The paper that we have seen today allows for regulatory alliance between the north and the south of Ireland to avoid a hard border, but that means there will be regulatory divergence between Northern Ireland and Great Britain—“a border up the Irish Sea”, in the words of the noble Lord, Lord Empey. It also means that there will be a customs border in regard to tariffs across the Northern Ireland/Irish frontier. There will have to be customs declarations and collections. The noble Lord, Lord Lilley, said that that would be done easily on computers in the exporting factories. That might work for large regular exporters or importers, but not for one-off or irregular traders, nor indeed those having to complete complicated rules-of-origin declarations on what they produce. So the paper, as we have looked at it today—in haste, it is true—appears neither credible nor workable, and nor does it respect the undertaking to all-Ireland economic activity of no new checks and no Northern Ireland/Great Britain border.
Furthermore, there remains the question that the Minister failed to answer when I posed it last Wednesday: what about free movement of people after we leave the single market? Once we have different immigration rules, I assume that the idea is not to allow those who will not have enough points—we have heard that we are going to have a points system—simply to bypass our border checks by flying in to Dublin and then driving across to Belfast or perhaps Holyhead, or indeed direct from Dublin to Swansea. So would there be border checks between Northern and southern Ireland, maybe on trains, at the airports or on the Cork ferry, to enforce the different rules either side of the border?
Perhaps the Government are considering something completely different: compulsory ID, so that effectively checks are in-country rather than at the borders. These are vital questions to which we need answers. We need to know how these rather vague concepts will work, and that should be spelled out to the House. I have to say that, if we trusted the Government rather more, these might be requests for information rather than demands—but that trust has rather gone.
As the noble Lord, Lord Heseltine, said, the country is more divided than he has ever seen it; yet, as the noble Lord, Lord Birt, said, there has been no attempt  at reconciliation. Instead, the Prime Minister unlawfully prorogued Parliament for five weeks to stop us asking questions; he calls an Act of Parliament, which simply demands Commons approval for no deal or else more negotiating time, a “surrender Act”; and the Attorney-General labels Parliament,
“as dead as dead can be”,—[Official Report, Commons; 25/9/19; col. 666.]
with no moral right to sit. Who is this tribune of the people, from the party that introduced the Fixed-term Parliaments Act, to decide that he should decide when we have an election and undo the very Act that he sought, and helped, to pass?
I am afraid it was only this evening that I learned from the noble Lord, Lord Heseltine, that the full Cabinet had not even seen or endorsed today’s letter to the European Union. So where has Cabinet government gone now? Meanwhile, hearing the Prime Minister today, and watching him on television, comparing Parliament to a failing school and a reality TV show—the Parliament to which he is accountable and to which he owes his position—made me doubt his attachment to our proud history of parliamentary democracy.
The Prime Minister, who should have the country’s interests at heart, delayed revealing his Brexit plan until just after his party conference—putting internal party management above the right of Parliament to scrutinise, above the need to debate and consider a fundamental issue, vital to the country’s future: the terms on which we leave the European Union and our future trading and security relationship with the EU 27. That is a shameful disregard for the national interest.
It was exactly 34 years ago yesterday that my noble friend Lord Kinnock was brave enough to take on his party and say:
“You can’t play politics with people’s jobs and with people’s services and with their homes”.
It is time for the party opposite to look beyond the ERG, the single-issue Brexiteers and those whose own jobs and services and homes are not threatened by a no-deal exit, and to put the nation first. But for this evening, we simply need clear answers to some straightforward questions that my noble and learned friend, I and other noble Lords have posed. The House deserves nothing less.

Lord Callanan: My Lords, once again this has been an extremely wide-ranging debate and it has given us the opportunity to take account of the significant recent developments in the EU exit process. That is very much in keeping with this House’s overall record of providing considered and insightful contributions throughout the process of the UK leaving the EU. Of course, I have listened to the debate carefully and I recognise that many noble Lords have alternative views, to put it mildly, on what this Government should be doing. Nevertheless, our commitment to delivering on the outcome of the 2016 referendum and the instruction of 17.4 million UK citizens has not waivered. I agree once again with my noble friend Lady Meyer when she says that it is time to move on and get Brexit done.
Let me do my best to address as many of the key points arising from the debate as I can in my closing remarks. A number of noble Lords, including the  noble Lord, Lord Liddle, asked about the continuing negotiations and the proposals that we have shared today. The Government are clear that our focus remains on getting a deal at the October European Council and leaving on 31 October. Let me reiterate to noble Lords, including the noble Lord, Lord Butler of Brockwell, that substantial discussions around possible approaches to securing a deal are ongoing and that, in our view, we have made good progress in these discussions. We will continue to work closely with the EU to achieve a deal so that we can leave on 31 October under an agreed framework. Let me say to the noble Baroness, Lady Smith of Newnham, that I have no doubt that my noble friend the Chief Whip and his colleagues in the usual channels want to agree a way forward, to give us sufficient time to debate any legislation that has been agreed by the House of Commons. I say to the noble Baroness that for her, as a Liberal Democrat, to start her speech by saying she wants to speak about democracy was one of the many ironies of this debate. That was a bit rich, given that the Liberal Democrats want to overturn the biggest democratic exercise we have ever had in this country.
As I noted earlier, we have shared with the EU the proposals that were made public shortly before the debate began. We have begun to engage with the EU on those proposals and, so far, the reaction seems to be fairly positive. I know that noble Lords, including the noble Lord, Lord Liddle, asked me whether this is a take it or leave it proposal. Clearly, we hope that Brussels will work with us over the next 10 days. If they do, then we will leave with a new deal. If they do not want to talk on the basis of these proposals then, as I have said, we are prepared to leave without a deal.
The noble Lord, Lord Adonis, referred to doublespeak in politics, which helpfully reminded me of my favourite moment in the whole of the European Parliament election campaign, when he told us that Labour respects the result of the referendum—and then immediately spent the rest of the campaign campaigning against it. If that was not doublespeak, I do not know what was.
The noble Lords, Lord Adonis and Lord Campbell, asked for further information on the proposals. We will have an opportunity to discuss these tomorrow but let me give a further brief summation for noble Lords. Many noble Lords asked how they are reconciled with Section 10(2)(b) of the European Union (Withdrawal) Act 2018. I assure the House that our proposals do not breach that section because they avoid checks, controls and physical infrastructure at the border.
I know that noble Lords have questions about what the proposals mean for that infrastructure. Under no circumstances would we put in place infrastructure, checks or controls at the border. We are proposing that all the customs processes needed to ensure compliance with UK and EU customs regimes should take place on a decentralised basis, with paperwork being conducted electronically as goods move between the two countries, and with the very small number of physical checks needed being conducted at traders’ premises or at other points in the supply chain. We hope that these proposals will now provide the basis for rapid negotiations towards a solution, together with the finalisation of necessary changes—

Baroness Hayter of Kentish Town: Can the noble Lord explain what would happen if I, as a consumer, buy something and then travel to the other part of Ireland? Who will check the goods that I bought in one place and then took across the border?

Lord Callanan: We will discuss many of these proposals in detail tomorrow.

Lord Campbell of Pittenweem: My Lords, I thank the Minister for giving way. I have now had the opportunity to look at the document entitled “Explanatory Note”. On page 6, in paragraph b, it says that:
“Physical checks—which would continue to be required only on a very small proportion of movements based on risk-assessment—could then take place at traders’ premises or other designated locations which could be located anywhere in Ireland or Northern Ireland”.
If these checks are to take place in Ireland, surely that will require the co-operation of the Irish Government.

Lord Callanan: Of course it will require the co-operation of the Irish Government. We want to discuss with them and the EU how we can address the unique situation of the circumstances in Ireland to bring about our exit from the European Union without imposing border infrastructure. That is what we want to achieve. We recognise that it is a unique and unusual circumstance. Indeed, we expect that the Irish Government will also wish to ensure that there is no infrastructure on their side either.

Lord Wallace of Saltaire: Since the Leader of the House is here, we repeat strongly the request to have sufficient time for this tomorrow, rather than having a Statement with 20 minutes for questions. This is clearly important, and we will need much more time.

Lord Callanan: The Chief Whip is not here, but the Leader of the House has heard the noble Lord’s comments. I am sure the usual channels will want to discuss how much time is available.

Lord Davies of Stamford: I thank the Minister for giving way. Is not the document presented to the Commission today thoroughly disingenuous? It refers to an open border. That is of course the position in Ireland today. If there were an open border, there would be no need for customs controls or checks of any kind, yet the Minister has just referred to the need to have those.

Lord Callanan: The situation is changing; that is why we need to agree new arrangements. We are leaving the European Union, the customs union and the single market, so clearly the arrangements will not be able to stay exactly as they are at the moment when we are part of those institutions. These proposals will allow us to move forward and focus on the positive future relationship that I believe is in all of our interests.
I have enormous respect for the noble Lord, Lord Empey, as he knows; he always makes insightful contributions in this House. He raised some important questions that I want to answer. We recognise that, for  reasons of geography and economics, some things such as agri-food are increasingly managed on a common basis across the island of Ireland. Regulatory checks already take place on some goods moving between Great Britain and Northern Ireland. While the proposals would see an increase in some of these, there would be no need for traders to submit customs declarations and we would go ahead only with the consent of the Northern Ireland Executive and Assembly. In light of this progress, we must take the route suggested by my noble friend Lord Howell of Guildford and choose to continue to work together in a positive spirit. In that way, we will ensure the best possible outcome for the UK, so that we deliver on the instructions given to us by the British people.
The noble and learned Lord, Lord Goldsmith, the noble Lord, Lord Marks, and the noble Viscount, Lord Chandos, asked about the Benn Act. The noble Baroness, Lady Hayter, the noble Lord, Lord Wallace of Saltaire, and my noble friend Lord Trenchard referred to it as the “surrender Act”.

Baroness Hayter of Kentish Town: It was the sovereignty Act.

Lord Callanan: That is the political game as we all attach different names to it. The noble and learned Lord, Lord Goldsmith, also speculated on the use of the Civil Contingencies Act in relation to the extension. I assure the noble and learned Lord that there are no plans to use the Civil Contingencies Act in a no-deal scenario. I point noble Lords to the words of the Prime Minister on contingency powers. He said that,
“what we want to do is get a deal and there is no purpose in discussing the hypothetical scenario”,
around the Benn Act. Let me be clear and reiterate to all noble Lords, as I have said a number of times on this subject: we will of course obey the law.

Lord Wallace of Tankerness: Let me pick up this point. He said that of course we will obey the law. If the House of Commons has not agreed to a deal nor approved no deal by 19 October, does he accept that the law—which he says he will obey—means that the Prime Minister must seek an extension?

Lord Callanan: I am not going to get into providing interpretations of an Act that was not government legislation, which we advised against and which we said, in our view, had considerable deficiencies. These are matters for lawyers. It is ultimately for the courts to determine what the Act says and requires, so I will go no further, no matter how many times people intervene on me, than saying that we are going to abide by the law.

Lord Cormack: The fact is it is an Act of Parliament. I have a Question on the Order Paper tomorrow. Can my noble friend assure me that he will give me a clear, unequivocal Answer to that Question? Parliament has the right to know what the Government are going  to do in the circumstances to which I referred in my speech and to which the noble and learned Lord, Lord Wallace of Tankerness, just referred.

Lord Callanan: My noble friend knows what the Government will do in the circumstances. We will obey the law, and we will obey the Benn Act, which is the law.

Baroness Hayter of Kentish Town: Some reference was made to it being a Private Member’s Bill. Some of us will remember Sydney Silverman’s Bill to get rid of the death penalty or the Bill of the noble Lord, Lord Steel, on abortion. They were Private Members’ Bills. Is the Minister saying that the origin of a Bill means that the Government may not have to agree with it? It is an Act of Parliament. Surely the Benn Act, just like any other Act, must be obeyed by the Government.

Lord Callanan: We will obey the law, as I have said on a number of occasions. The Benn Act is the law; we will obey the law.

Lord Butler of Brockwell: I just ask a simple question. In those circumstances, will the Government write a letter seeking an extension?

Lord Callanan: The Government will obey the law.

Noble Lords: Oh!

Lord Callanan: I am not going to take any more interventions on this. I do not wish to go any further. Noble Lords will draw the political conclusions they wish to from the answers that I have given, but that is the Government’s position and I am not going any further than the answer that I have given.
No-deal preparations were raised by many noble Lords, including the noble and learned Lord, Lord Goldsmith, my noble friend Lord Lilley and the noble Lord, Lord Monks. Noble Lords will understand that the Government’s position is that, if it is not possible to reach a deal, we will have to leave on 31 October with no deal. We are committed to preparing for that outcome. As I said at the opening of this debate, we are ramping up the preparations. All necessary funding will be made available, and we will make all the necessary preparations to ensure stability for citizens, consumers, businesses and the economy.
A number of noble Lords, including the noble Lord, Lord Wigley, will be pleased to know that the Government continue to work closely with the devolved Administrations. With regard to the question from the noble and learned Lord, Lord Wallace, we are committed to managing the policing implications of Brexit in the UK through a collective approach, notwithstanding that policing is, of course, a devolved matter in Scotland. I have participated in many meetings with the devolved Governments of Scotland and Wales, and with the Northern Ireland Civil Service, where precisely these matters have been discussed.
Noble Lords, including the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Monks, asked about Operation Yellowhammer. Departments have identified a range of measures to mitigate the potential impacts of a challenging no-deal exit, some of which involve the use of existing regulations  and powers. Such activities are not uncommon in challenging situations, but, as I said, the Government have no intention of using the Civil Contingencies Act  for Operation Yellowhammer. To answer the question  posed by the noble Lord, Lord Monks, extensive work to prepare for all scenarios has been under way for more than two years on food supply chains. The Government have well-established ways of working with the food industry on food supply chain issues and we are using these to support preparations for leaving the EU.
Noble Lords, including the noble Earl, Lord Clancarty, raised the vital issue of citizens’ rights. I reiterate to the House this Government’s unwavering commitment to protecting the rights of EU citizens in the UK and UK nationals living in the EU. EU citizens make an invaluable cultural and economic impact on the UK and we thank them for their patience and contribution to our society. Our focus now is on securing reciprocal assurances from our European counterparts—guarantees that supplement existing member state commitments and the steps we have already taken to protect the rights of UK nationals.
As part of securing reciprocity, I can assure the noble Viscount, Lord Waverley, and the noble Earl, Lord Clancarty, that we have legislated for the EU settlement scheme through the Immigration Act 1971. Indeed, as of August 2019, 117,300 Portuguese citizens have applied for the scheme, which will protect their rights in all scenarios—approximately half of the Portuguese citizens living in the UK. To reassure the noble Viscount, my right honourable friend the Brexit Secretary spoke with the Portuguese Minister of Foreign Affairs last month to highlight the steps we are taking to protect EU citizens and called for reciprocal protections for UK nationals in Portugal. This builds on the rights we have already secured. In June I also signed a voting rights treaty with Portugal in Lisbon that means that UK nationals living in Portugal and Portuguese citizens living in the UK can continue to participate in local elections.
The noble Lord, Lord Dubs, asked about family reunification for refugees. I can tell him that refugees from the EU would be entitled to apply via the settlement scheme and have family rights as part of that in line with other EU citizens. The status of non-EU refugees does not change as a result of Brexit.
The noble Earl, Lord Kinnoull, whom I welcome to his new post as chair of the EU Committee, asked about the impact on the EU Committee’s scrutiny process of the Government’s policy of attending EU meetings only where the UK still has significant interest. This policy has already been effective in unshackling officials from meetings that are no longer relevant to the UK to focus on our national priorities. As I made clear in my recent letter to him, the Government will continue to meet their commitments to facilitate the scrutiny process, including preparing EMs and updating the committee on the progress of files under scrutiny. We have also committed to sharing information on which meetings the UK will attend. Of course, I would be very happy to meet with him to discuss this further.

Baroness Smith of Newnham: The Minister just suggested that current legislation would not have an impact on the United Kingdom, but if Northern Ireland were to remain in the single market could legislation that is going through not impact on Northern  Ireland if the Government get their way? In that case, is it not still an important position for Ministers to attend?

Lord Callanan: If there are significant matters—of course we are still currently a member of the EU—then we are attending meetings, but not all EU meetings are to do with legislation. A lot of them are to discuss things that might happen, some of which could possibly impact on Northern Ireland, so we review which meetings we are attending on a weekly basis. I would of course be happy to meet the noble Earl, Lord Kinnoull, to discuss this further.
In concluding this debate, I remind your Lordships that it has been three years since the British people voted in the referendum to instruct the Government to leave the European Union. A number of noble Lords—the noble Lords, Lord Birt, Lord McNally, Lord Taverne, Lord Heseltine and Lord Livermore—spoke of having a second people’s vote. The noble Lord, Lord Shutt  of Greetland, even questioned the continued validity of the 2016 referendum. I remind noble Lords again of the Government’s position that more British people voted in the 2016 referendum than for any other course of action in British electoral history. The message from voters in that referendum and the subsequent general election was clear; we cannot continue to second-guess such a clear instruction and we will never support another referendum.

Baroness Altmann: I put on the record that the Minister is not quite right. More people voted in the 1992 general election than in the EU referendum.

Lord Callanan: I will check the figures; I am not sure that the noble Baroness is correct on that.
I have laid out the ways in which the Government are working to deliver on that instruction and the way in which we are prepared for multiple outcomes. Today we have presented to Parliament and to the public our new proposals on Northern Ireland and Ireland. As I said earlier, I hope that these proposals can provide the basis of a rapid negotiation towards a deal, which is what we want. This will then allow us to focus on a positive future relationship that is in all our best interests.
This Government are looking to the future beyond our withdrawal from the European Union. We are looking ahead to work on the NHS, violent crime and cutting the cost of living. As the Prime Minister said in his Statement in the other place last week, and as he repeated in his speech this morning, what the British public want from the Government is for us to respect the outcome of the referendum in which they gave a clear instruction to deliver a withdrawal from the European Union and for the Government to move on and move forward.

Lord Anderson of Ipswich: Before the Minister sits down, may I thank him for the clarification he has given? He has not simply said that the Government will obey the law, which we have heard before. He said two other things that were perhaps of significance: first, that the Government would obey the Benn Act,  and, secondly, if I heard him right, that they would not use the Civil Contingencies Act to amend or repeal the Benn Act. Can he confirm that no regulation-making power, whether in the Civil Contingencies Act, the European Union (Withdrawal) Act 2018 or any other Act of Parliament, will be used to amend or repeal the clear provisions of the Benn Act?

Lord Callanan: I am afraid that this is becoming a bit tiresome. I do not want to go any further than what I said in my speech. We are going to obey the law. The Benn Act is part of the law and we will obey it.

Lord Mackay of Clashfern: Before my noble friend sits down, I think I made a speech earlier on. I just wonder whether he has any comment on it.

Lord Callanan: There were 51 noble Lords who spoke in the debate. I made an extensive set of notes and endeavoured to respond to as many of the points as possible. I will look again at my notes on the speech from the noble and learned Lord and reply to him in writing. I apologise for missing him out.
Motion agreed.
House adjourned at 9.38 pm.